Allahabad High Court
Jiya Lal vs State Of U.P. on 19 May, 2020
Equivalent citations: AIRONLINE 2020 ALL 1515
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
In Chamber
Reserved on 20.02.2020
Delivered on 19.05.2020
Criminal Appeal No. 1012 of 1983
Jiya Lal ........... Appellant
Vs.
State of U.P. ....... Respondent
For Appellant : Sri Hemendra Pratap Singh
For Respondent : Sri Amit Singh Chauhan, A.G.A.
Hon'ble Raj Beer Singh, J.
1. This criminal appeal has been preferred against judgment and order dated 20.04.1983 passed by learned Special Judge, Bulandshahr in Session Trial No. 142 of 1982 (State Vs. Jiya Lal and others), under Section 307 of IPC, Police Station Debai, District Bulandshahr, whereby accused-appellant Jiya Lal along with co-accused Surya Mani and Chandra Mani has been convicted under Section 307/34 of IPC. Accused-appellant Jiya Lal has been sentenced to seven years imprisonment under Section 307/34 of IPC, whereas co-accused Chandra Mani and Surya Mani were released on probation of good conduct under U.P. Children Act, 1952.
2. Prosecution version, in brief, is that on 14.11.1981 at about 09:00 AM, two minor sons of informant Ganga Prasad, namely, Yogesh (PW-4) and Lokesh have gone to their agriculture field. At about 01:00 PM, they were taken away by co-accused Chandra Mani and Surya Mani to field of Dhimri for chewing sugarcanes. While they were chewing sugarcanes, accused-appellant Jiya Lal also reached there. Accused-appellant Jiya Lal and co-accused Chandra Mani and Surya Mani put a loop around their necks and took both the children into sugarcane field. They tried to strangulate them and co-accused Surya Mani and Chandra Mani inflicted knife injuries to them. Consequently both Yogesh (PW-4) and his younger brother Lokesh have become unconscious. Both the injured children were left in the sugarcane field. Informant was informed about this incident by one Kanhai and thereafter, both the injured children were taken to hospital.
3. Informant Ganga Prasad reported the matter to Police by submitting a tehrir Ex. Ka-1 and on that basis this, a case was registered on 15.11.1981 at 19:30 hours against all the three accused persons under Section 307 of IPC vide FIR Ex. Ka-6.
4. Injured Yogesh, aged 9 years, was medically examined vide MLC Ex. Ka-2. He has sustained following injuries:
(i) Lacerated wound ½ cm x .2 cm, skin deep on right side of face on the mandible angle, bleeding present.
(ii) Two circular band impressions of contusion around the neck just below the thyroid cartilege of 2 mm size.
(iii) Contusion 3 cm x 2 cm on back of forearm, just below the elbow joint with trsumatic swelling around the elbow joint, red in colour.
Lips were livid. Face deeply congested , sub-conjctural haemorhrrage in both eyes. Nails, nose, lips, tounge, cynose, Relaxalin of sphincter, unconsciousness, pulse feeble.
Injured Lokesh, aged 7 years, was medically examined vide MLC Ex ka-3, he has sustained following injuries:
(i) Contusion 1 cm size around the left eye with swelling on lids sub-conjctural haemorhrrage present red in colour.
(ii) Contusion on left side of face 4 x 4 cm, on the cheek, red in colour, tenderness present.
(iii) Abrasion 1 x .3 cm on the inner side of pinna of left ear, crust is not formed.
(iv) Abrasion 1.5 x linear on both angles of mouth facing downwards.
(V) Abrasion .25 cm starting from side of neck of left side encircling whole front of neck, 4 cm below the lobule of rt ear, 18 cm in length on the hyole cartilege.
(Vi) Abrasion .25 cm size starting from 3.5 cm, below the lobule of left ear encircling the whole front of neck ending at back of right side of neck 2.5 cm below the first bend.
Lips were livid and face deeply congested. sub-conjctural haemorhrrage in left eye nail, nose, hips, tounge, cynose, Relaxalin of sphincter, pulse feeble, volume low, 88 per mt BP unrecorded, respiration slow.
It was opined that injuries on the neck could have been caused by strangulation and dangerous to life.
5. During course of investigation, site plan of the spot was prepared vide Ex. Ka-8. Statements of witnesses were recorded. After completion of investigation, all the three accused persons were charge-sheeted for offence under Section 307 of IPC vide Ex. Ka-9.
6. Trial Court framed charges under Sections 307/34 of IPC against accused-appellant Jiya Lal and co-accused Surya Mani and Chandra Mani. Accused persons pleaded not guilty and claimed trial.
7. In order to bring home guilt of the accused persons, prosecution has examined eight witnesses. Accused persons were examined under Section 313 Cr.P.C. wherein they have denied prosecution evidence and claimed false implication. In defence, they have examined one Digamber Singh and Danveer Singh as DW-1 and DW-2 respectively.
8. After hearing and analysing evidence on record, accused appellant and co-accused persons were convicted under Sections 307/34 of IPC by trial court vide impugned judgment and order dated 20.04.1983 and sentenced them as stated in para no. 1 of this judgement.
9. Being aggrieved by the impugned judgment and order, accused-appellant Jiya Lal has preferred this Criminal appeal.
10. Heard Sri Hemendra Pratap Singh, learned counsel for the appellant, Sri Amit Singh Chauhan, learned A.G.A. for the State and perused the record.
11. Learned counsel for the appellant has argued that there is undue and long delay in lodging the FIR. Alleged incident was shown of 14.11.1981 at around 01:00 PM, but FIR has been lodged on 15.11.2018 at 19:30 hours and this long delay in lodging the FIR has not been explained, which creates doubt in prosecution version. Injured Yogesh (PW-4) was aged about 6-7 year-old and thus, the possibility of his tutoring cannot be ruled out and that there is no evidence that PW-4 Yogesh was competent enough to make such an statement. In view of these facts and circumstances, it is not safe to convict accused appellant on the basis of testimony of child witness of PW-4 Yogesh. It was further submitted that on the day of incident, accused-appellant was present at village Govli, as stated by DW-2 Danvir Singh. He has performed a 'Devi Jagran' there. Said village Govli is situated at a distance of 20 km from village of complainant. It was submitted that in view of statement of DW-2 Danveer Singh, it was not possible that accused-appellant might have involved in alleged incident. Names of PW-1 Vedram and PW-2 Malkhan were not mentioned in FIR and their evidence has not been believed by the trial court. The statement of child witness suffers from various inconsistencies and infirmities and thus, it cannot be made basis for conviction of accused-appellant. Neither the alleged rope was taken into possession nor the clothes of injured children were seized. Learned counsel argued that in view of nature of injuries, no case under Section 307 of IPC is made out. If accused-appellant might have intention to commit murder of injured children, he could have caused their death. Learned counsel for the appellant argued that there is no reliable evidence against accused-appellant and thus, conviction of accused-appellant is not sustainable.
12. Per-contra, it has been submitted by learned State Counsel that there is no undue delay in lodging the FIR. Injured children have sustained serious injuries and in such facts and circumstances, it is not expected that complainant would rush to police station soon after he came to know about the incident. Statement of injured witness PW-4 Yogesh is cogent and consistent. He has stood the test of cross-examination and that there is nothing to indicate that he was a tutored witness. There are no reasons to disbelieve the testimony of this witness. His version is amply corroborated by PW-1 and PW-2 as well as by medical evidence. It was stated that conviction of accused-appellant is based on evidence and there are no grounds to interfere with the same.
13. I have considered rival submissions of learned counsel for the parties and perused the record.
14. In evidence, PW-1 Ved Ram has stated that on day of incident he along with Malkhan was going to village Bamni for purchasing a buffalo. At around 02:00 pm, when they reached at a distance of about one and a half furlong, near sugarcane field of Dhimri, they saw that accused Jiya Lal was standing in side of bushes. At some distance, Chandra Mani, Surya Mani, Lokesh and Yogesh were chewing sugarcanes. As PW-1 Ved Ram and his companion Malkhan proceeded further, they heard voice of crying, coming from the sugarcane field. PW-1 Ved Ram and Malkhan ran towards that place and saw that Lokesh and Yogesh were lying down in the field. Their neck was lying tied with rope and they have suffered knife injuries. They raised an alarm and thereafter, one Kanhai also came there. They asked Kanhai to inform in the village about this incident. When PW-1 Ved Ram and his companion reached there, they saw that accused-appellant Jiya Lal was trying to strangulate said Yogesh and Lokesh, whereas Chandra Mani and Surya Mani were giving knife blows to Lokesh and Yogesh. Thereafter, accused persons have fled from there.
15. PW-2 Malkhan has stated that on day of incident, he along with Ved Ram was going to village Bamni for purchasing a buffalo. At around 02:15-02:30 PM, when they reached near field of one Jatav of Itwari Nagar, they saw that Chandra Mani, Surya Mani and accused-appellant Jiya Lal as well as Lokesh and one more boy, who is son of Ganga Prasad, were chewing sugarcane. As he (PW-2 Malkhan) and PW-1 Ved Ram proceeded further, they heard voice of crying. He and PW-1 rushed towards that place, which was sugarcane field of Todi and saw that accused-appellant Jiya Lal was trying to strangulate Lokesh, whereas Chandra Mani and Surya Mani were causing knife injuries to them. At the same time, one Kanhai has also reached there. They asked Kanhai to inform Ganga Prasad, father of children. When PW-2 Malkhan and PW-1 Ved Ram reached near accused persons, the accused persons ran away from there. They have untied the rope from neck of injured children.
16. PW-3 Ganga Prasad has stated that on day of incident, his son Yogesh and Lokesh have gone to field whereas he has gone to brickkiln. At around 02:00 pm, he (PW-3) returned back to his home and he was informed by one Kanhai of Bhimri that his sons were lying dead in sugarcase filed of Todi. PW-3 Ganga Prasad rushed to that place and saw that Yogesh and Lokesh were lying unconscious. PW-1 and PW-2 were present there. The ropes of neck were also lying there and both the children were bleeding. Both the children were taken to Danpur Hospital and they were medically examined there. Thereafter, the children were referred to Bulandshahr District Hospital. Both the children were still unconscious. Elder son gained consciousness on the next morning and younger one has gained consciousness at Bulandshahr District Hospital. Both the injured children have told that they were attacked by accused-appellant Jiya Lal and co-accused Chandra Mani and Surya Mani. PW-3 has filed tahreer exhibit ka-1 before the Police.
17. PW-4 Yogesh is an injured child. At the time of his examination, he was aged about 7 years. However, in his medical examination report Ex. ka-2, his age is mentioned 9 years. After satisfying itself regarding competency of this witness, the trial court has recorded his statement without oath. PW-4 Yogesh stated that on day of incident, he and his younger brother Lokesh have gone at their field. At about 01:00 PM, Chandra Mani and Surya Mani came there and asked PW-4 Yogesh and his brother to go with them for chewing sugarcanes. They reached at sugarcane field of Bhimri and while they were chewing sugarcanes, accused-appellant Jiya Lal also reached there and he was having a gunny bag in his hand. Jiya Lal put a loop around his neck, whereas Chandra Mani fixed neck's noose to Lokesh and accused persons took them inside sugarcane field. Surya Mani and Chandra Mani inflicted knife injuries to them and thereafter, he (PW-4) and his younger brother Lokesh have become unconscious.
PW-4 Yogesh further stated that they have told the entire incident to their father after getting consciousness at Bulandshahr Hospital. PW-4 Yogesh further stated that before this incident, sometime back he and his elder brother Naresh have gone to see Ramleela. Surya Mani and Chandra Mani have put feet on his food and on that issue, his elder brother Naresh has given beatings to Chandra Mani and Surya Mani.
18. PW-5 Dr. Roshan Lal has medically examined Yogesh and Lokesh. PW-6 H.C. Umesh Chandra has recorded G.D. entry. PW-7 constable Udaiveer Singh has recorded FIR. PW-8 S.I. Pyare Lal Sharma has conducted investigation.
19. D.W. 1 Digamber Singh has deposed about presence of Chandra Mani and Surya Mani at school, which is not required to be discussed in the present appeal.
20. D.W.-2 Danveer Singh has stated that accused-appellant Jiya Lal used to perform Jagran. At about one year and a half month prior, he has performed Jagran at his house. The Jagran was started at 12:00 AM night and it continued till 08:00 PM. One day prior to that, Jiya Lal has performed 'Devi Jagran' at house of one Babu. After Jagran at house of DW-2 Danveer Singh, accused-appellant has performed a 'Devi Jagran' at house of one Kuwar in night. Jiya Lal has left on 4th day at 04:00 PM from there and in the meantime, he continuously remained present there.
21. So far the contention regarding delay in lodging the first information report is concerned, it is a settled principle of criminal jurisprudence that mere delay in lodging the FIR may not prove fatal in all cases, but in given circumstances of a case, delay in lodging the FIR can be one of the factor which corrode the credibility of the prosecution version. Delay in lodging the FIR cannot be a ground by itself for throwing away the entire prosecution case. The court has to seek an explanation for delay and check the truthfulness of the version put toward. If the court is satisfied then the case of the prosecution cannot fail on this ground alone. (vide Jitender Kumar vs State Of Haryana and Others 2012 (78) ACC 70, the apex court referred the case laws of Yakub Ismailbhai Patel vs State Of Gujarat (2004) 12 SCC 229 and Shub Shanti Services v Manjula S. Agrawal and others (2000) 5 SCC 30) In Chunni Lal Vs. State of U.P. 2010 (70) ACC 583, the apex court observed that the delay which was caused due to reasonable factual situation cannot destroy the prosecution case nor creates any suspicion with regard to the prosecution case.
In Amar Singh vs Balwinder Singh & Ors 2003 (46) ACC 619, the apex court held that:
"There is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this a host of circumstances like the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station, etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR." ..
In Kanhaiya Lal And Ors. vs State Of Rajasthan 2013 (81) ACC 940, the apex court at para 12 observed that it is settled in law that mere delay in lodging the First Information Report cannot be regarded by itself as fatal to the case of the prosecution. However, it is obligatory on the part of the court to take notice of the delay and examine, in the backdrop of the case, whether any acceptable explanation has been offered, by the prosecution and if such an explanation has been offered whether the same deserves acceptance being found to be satisfactory.
From the above case laws, it is clear that delay in lodging the FIR is not itself fatal to the prosecution case. To explain the delay there might be direct or circumstances appearing on record may provide reasonable explanation. Providing medical aid to injured, element of fear and threats, distance of police station, conveyance available are factors having bearing on question of delay.
In the instant case after examining the factual scenario and a careful perusal of the material on record, it appears that no adverse inference can be drawn against prosecution case on ground of delay in FIR. Perusal of record shows that first informant was informed about this incident by one Kanhai at about 02.00 PM on 14.11.1981 and thereafter, he went at spot and found that his both children were lying unconscious in sugar cane field and they were bleeding. The version of complainant PW-3 Ganga Prasad is that after getting information from Kanhai, he rushed to the spot and found that his sons Yogesh and Lokesh were lying unconscious and in bleeding condition. Both the children were taken to Danpur Hospital and they were medically examined there. Thereafter, the children were referred to Bulandshahar District Hospital and accordingly, they were shifted in District hospital, Bulandshahar. PW-3 Ganga Prasad has further stated that his elder son gained consciousness on the next day morning and younger one has gained consciousness at Bulandshahar District Hospital. Both the injured children have told that they were attacked by accused-appellant Jiya Lal and co-accused Chandra Mani and Surya Mani. Thereafter, PW-3 Ganga Prasad has filed tahreer exhibit ka-1 before the Police. It is quite natural that as two minor sons of PW-3 Ganga Prasad were seriously injured, thus, the first priority of complainant would be to provide them treatment and not to rush to the police station for lodging the FIR. His elder son has got consciousness on the next day and told that he as well his brother Lokesh were attacked by accused-appellant Jiya Lal and two co-accused persons. After that FIR was lodged on the next day i.e. 15.11.1981 at 19:30 hours. In his cross-examination, PW-3 Ganga Prasad has stated that after taking injured children to Danpur, he has gone to Dibai but the police did not register FIR and asked that first he must save life of his children and thus, he took the injured children to Bulandshahar district hospital. Here, it has to be kept in mind that some time might have been consumed in travelling from Bulandshahar to P.S. Dibai. It is clear that the explanation offered by PW-3 Ganga Prasad regarding delay in lodging the FIR is quite satisfactory. In view of these facts and circumstances of case, it can not be said that there is undue delay in lodging the FIR. The contention raised by learned counsel for appellant has no force.
22. No doubt PW 4 Yogesh is a child witness as at the time of his examination, he was aged about 7 years. The law with regard to testimony of a child witness is well settled. The Indian Evidence Act, 1872 does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from questions, because of tender years, extreme old age, disease -- whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and given rational answers thereto. The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the facts and circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored.
23. In Mangoo & Anr. v. State of Madhya Pradesh, AIR 1995 SC 959, the Hon'ble Apex Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The Court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring.
In Panchhi & Ors. v. State of U.P., AIR 1998 SC 2726, Hon'ble Apex Court while placing reliance upon a large number of its earlier judgments observed that "the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that "the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring."
In Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra, AIR 2008 SC 1460, Hon'ble Apex Court dealing with the child witness has observed as under:
"The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness." The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross- examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on a oath and the import of the questions that were being put to him. (Vide: Himmat Sukhadeo Wahurwagh & Ors. v. State of Maharashtra, AIR 2009 SC 2292).
In State of U.P. v. Krishna Master & Ors., AIR 2010 SC 3071, the Hon'ble Apex Court held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature.
Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness. (Vide: Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516).
In CRIMINAL APPEAL NO. 1289 of 2005, State of M.P. Vs Ramesh & Anr. decided on 18.03.2011, Hon'ble Apex Court has considered the above stated decisions and held as under:
''In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition.''
24. From aforementioned legal position, it is clear that in case deposition of child witness inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. Corroboration is a rule of caution and not a mandatory requirement. However, evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. If there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition.
The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. The precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. It is for the Judge to satisfy himself as regards fulfilment of the requirement of the section 118 of Evidence Act.
25. Applying the above discussed position of law to the facts of this case, it may be seen at the time of his deposition, PW-4 Yogesh was about 7 years of age. Before recording his statement, learned Trial Judge has put several questions to him to satisfy whether he understands the question(s) put to him and gives rational answer thereto. After satisfying itself regarding competency of this witness, the trial court has recorded his statement without oath.
PW-4 Yogesh has made a consistent and cogent statement that while he and his younger brother Lokesh were present at their field, at about 01.00 PM, they were taken away by co-accused Chandra Mani and Surya Mani to sugarcane field of Dhimri and while they were chewing sugarcanes, accused-appellant Jiya Lal also reached there and thereafter Jiya Lal put a loop around his neck, whereas Chandra Mani fixed neck's noose to Lokesh. They took them inside sugarcane field and that Surya Mani and Chandra Mani inflicted knife injuries to them. PW-4 Yogesh has been subjected to cross-examination, but no important contradiction or infirmity could emerge. Merely because he stated that his clothes have become bloodstained, but the same were not taken into possession by police, the version of PW-4 Yogesh could not be doubted. The lapse on the part of Investigating Officer would not discredit testimony of PW-4 Yogesh, which otherwise is quite consistent and credible. In fact there is absolutely no such in his cross-examination, which may caste any doubt about authenticity of his version. From his cross-examination also, it appears that he has given rational answers to questions put to him. PW-4 Yogesh has given vivid description of entire incident and has successfully stood the test of cross-examination and his version is supported by medical evidence. PW-4 Yogesh has himself sustained injuries in the incident and no reasons could be shown that why he depose falsely against the accused-appellant. Thus, the testimony of PW-4 Yogesh is found consistent, cogent and reliable.
26. PW-1 Vedram and PW-2 Malkhan are also eye witness of alleged incident. The essence of their testimony is that on day of incident, while they were going to village Bamni for purchasing a buffalo, at around 02:00 pm, while they were passing from near the spot of incident, they have seen accused Jiya Lal, who was standing in side of bushes and that co-accused Chandra Mani and Surya Mani as well as Lokesh and Yogesh were chewing sugarcanes. As PW-1 Ved Ram PW 2 Malkhan proceeded further, they heard voice of crying coming from the sugarcane field of Todi. They reached there and saw that Lokesh and Yogesh were lying down in the field and their neck was lying tied with rope and they have suffered knife injuries. They have further stated that accused-appellant Jiya Lal was trying to strangulate said Yogesh and Lokesh, whereas Chandra Mani and Surya Mani were giving knife blows to Lokesh and Yogesh. Thereafter, accused persons have fled from there.
Perusal of impugned judgment shows that testimony of these witnesses PW-1 Ved Ram PW 2 Malkhan was disbelieved by the trial court mainly on the ground that names of these witnesses were not mentioned in FIR and that injured child (PW-4 ) has also not spoken about their presence. However, even excluding the testimony of PW-1 Ved Ram PW 2 Malkhan from consideration, it is apparent that testimony of injured child (PW-4 ) is quite cogent and credible. Merely because the alleged rope was not found, it would not affect credibility of PW-3 Yogesh. Here it may be stated that Investigating Officer has visited the spot of incident on third day of incident and thus, it is not surprising that ropes were not found at spot.
27. So far plea of alibi taken by accused-appellant Jiya Lal is concerned, the version of DW-2 Danvir is that accused-appellant Jiya Lal has come to his village Govli, PS Atrauli, Bulandshahar and he remained there for three days and performed 'Jagran' at his house as well as at some houses. It was stated village Govli is situated at a distance 20 km from village of complainant. It is well settled that the onus of proving a plea of alibi is on the accused (vide 1978 Cr. L. J. 141 State of UP Vs Saughar Singh & Ors.). Therefore, the appellant must prove the plea of alibi to the satisfaction of the Court by producing cogent and consistent evidence so that the court comes affirmatively to the conclusion that the appellant could not have participated in the commission of horrendous crime in their own residence. However, the plea of alibi can also be spelt out from the prosecution evidence, if it is available therefrom. True it is that when a plea of alibi is taken, it is open to him to establish such plea by preponderance of probabilities and to make it 'probably reasonable'. But the fact remains that such plea of alibi must be proved with absolute certainty so as to completely exclude the possibilities of the appellants at the scene of the crime. Reliance can also be placed in this regard upon two rulings of the Apex Court reported in 1984 Cr. L. J.187 [Purna & Anr. vs State of U.P.,] and 1997 Cr. L.J. 2242 [Rajesh Kumar Vs. Dharam Vir.].
The Supreme Court in the case of Vijay Pal v. State (Govt. of NCT of Delhi), reported in (2015) 4 SCC 749 has held as under :
"25. At this juncture, we think it apt to deal with the plea of alibi that has been put forth by the appellant. As is demonstrable, the trial court has discarded the plea of alibi. When a plea of alibi is taken by an accused, burden is upon him to establish the same by positive evidence after onus as regards presence on the spot is established by the prosecution.'' Thus, the burden to prove the plea of alibi is heavy on the accused and the plea of alibi cannot be proved by preponderance of probabilities. Viewed in the light of sound proposition of law discussed in above referred foregoing paragraphs, it can be said that the burden on the accused is heavy as required under section 103 of the Indian Evidence Act which provides that the burden of proof as to any particular fact is on that person who wishes the court to believe in its existence. Therefore, the strict proof is required for establishing the plea of alibi. The burden to prove the plea of alibi is heavy on the accused and the plea of alibi cannot be proved by preponderance of probabilities. It is well-settled that it is for the accused to prove the case of alibi to the hilt.
28. In the instant case, the accused-appellant has miserably failed to establish his plea of alibi. It may be noticed that DW-2 Danvir has not clarified that on which particular date accused-appellant Jiya Lal came there and up to which date he remained there. The statement of DW-2 Danvir is quite vague, whereas the evidence of injured child PW-4 Yogesh is quite categorical and cogent. There is no categorical evidence that at the time of alleged incident, accused-appellant Jiya Lal was present at village Govli. The plea of alibi has to be proved with absolute certainty so as to completely exclude the possibility of the presence of the appellant at the scene of offence at the time of alleged incident. When a plea of alibi is raised by an accused it is for the accused to establish the said plea by positive evidence but the accused-appellant Jiya Lal has failed to do so. Thus, plea of alibi raised by accused-appellant Jiya Lal is not acceptable.
29. So far the question of motive is concerned, it is well settled that if a case is based on direct evidence, motive has no much significance. Clear proof of motive lends additional assurance to other evidence but the absence of motive does not lead to contrary conclusion however in that case, other evidence has to be closely scrutinized. If positive evidence is clear and cogent the question of motive is not important. However, this is relevant to lend assurance the other evidence. Motive is not a sine qua non for the commission of a crime. Moreover, failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record unerringly establishes the guilt of the accused. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record unerringly establishes the guilt of the accused. Reference may be made to the case law pronounced in case of State of U.P. V Nawab Singh, 2005 SCC (Criminal) 33.
Dealing with similar issue the Apex Court in State of U.P. Vs. Kishanpal & Ors., (2008) 16 SCC 73 held as under:
"The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."
In fact, motive is a thing which is primarily known to the accused himself and it may not be possible for the prosecution to explain what actually prompted or excited him to commit a particular crime. In Shivji Genu Mohite V. State of Maharashtra, AIR 1973 SC 55, the Hon'ble Supreme Court has held that in case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye- witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eye-witness is rendered untrustworthy. Therefore, in case there is direct trustworthy evidence of witnesses as to commission of an offence, the motive part loses its significance.
30. In the instant case, conviction of accused-appellant Jiya Lal is based on testimony of injured witness PW-4 Yogesh, which has been found reliable. Thus, proof of motive is not necessary to sustain conviction of accused-appellant, however, prosecution has come with a case that sometime before the incident, PW-4 Yogesh and his elder brother Naresh have gone to see Ramleela. Surya Mani and Chandra Mani have also gone there and that they have put feet on his food and on that issue his elder brother Naresh has given beatings to Chandra Mani and Surya Mani. In this regard, statement of PW-4 Yogesh is quite clear and consistent. No such fact could emerge in his cross-examination, so as create any doubt about this version. Thus, it could not be said that there was no motive at all on the part of accused-appellant Jiya Lal to commit this incident.
31. PW-4 Yogesh is an injured witness. He has given vivid description of entire incident. No material contradiction or infirmity could be shown in his statement. The evidence of an injured witness deserves greater weight and firm, cogent and convincing reasons are required to discard the evidence of an injured witness. The evidentiary value of an injured witness carries great weight. In Mano Dutt and another v. State of Uttar Pradesh - (2012) 4 SCC 79, Hon'ble Apex court held that 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 -(1973) 3 SCC 881, Malkhan Singh v. State of U.P. - (1975) 3 SCC 311, Machhi Singh v. State of Punjab - (1983) 3 SCC 470, Appabhai v. State of Gujarat - 1988 Supp SCC 241, Bonkya v. State of Maharashtra -(1995) 6 SCC 447, Bhag Singh v. State of Punjab -(1997) 7 SCC 712, Mohar v. State of U.P.-(2002) 7 SCC 606, Dinesh Kumar v. State of Rajasthan-(2008) 8 SCC 270, Vishnu v. State of Rajasthan -(2009) 10 SCC 477, Annareddy Sambasiva Reddy v. State of A.P.-(2009) 12 SCC 546 and Balraje v. State of Maharashtra- (2010) 6 SCC 673.]''
32. Thus, it is clear that the Apex Court has reiterated the special evidentiary status accorded to the testimony of an injured witness. 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. Thus, 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 therein.
33. Keeping in view the aforesaid position of law in mind, in the instant case, it may be seen that testimony of injured witness PW-4 Yogesh is clear and cogent and nothing adverse could emerge in his cross-examination. His version is supported by medical evidence and it is consistent with evidence of PW-3 Ganga Prasad as well of Investigating Officer. The defence had failed to demonstrate any such discrepancy, omission and improvement that would have caused the Court to reject such testimony after testing it on the anvil of the law laid down by the Apex Court. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the Investigating Officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
34. The contention that in view of nature of injuries, no case under Section 307 of IPC is made out, has no substance. It is clear from medical examination report of injured children that accused-appellant Jiya Lal and co-accused persons have tried to strangulate them. Besides that, knife injuries were caused on vital parts. PW-4 Dr Roshan Lal has opined that injuries sustained by injured children were dangerous to life. From statement of PW-4 Yogesh coupled with medical evidence, it is clear accused-appellant Jiya Lal and co-accused persons have made an attempt to kill the victim children. It is also clear that all the three accused persons have committed this incident in furtherance of common intention.
35. In the instant case, when the evidence on record is examined in the light of legal position discussed above, it is apparent that so far as culpability of accused-appellant Jiya Lal is concerned, as noticed above, the testimony of injured witness is clear and cogent and it has stood test of cross-examination. His version is supported by medical evidence and it is consistent with other evidence on record. No major contradiction or infirmity could be shown. In view of evidence on record, it is apparent that conviction of accused-appellant Jiya Lal is based on evidence and trial court was justified in convicting them and thus, conviction of accused-appellant Jiya Lal is upheld.
36. So far as sentence is concerned, it was stated by the learned counsel for the appellant that alleged incident took place on 14.11.1981 and after that period of about 38 years and six months has already been passed. There is nothing to show that accused-appellant Jiya Lal is a previous convict. In his statement under Section 313 Cr.P.C recorded on 12.10.1982, the age accused-appellant Jiya Lal was mentioned 23 years and thus, it is clear that now, accused-appellant is aged about 60-61 years. It was stated that in view of above-stated specific facts and circumstances of the case, no useful purpose would be served by sending accused-appellant in jail at this stage.
37. Sentence must be just and proper having regard to nature of offence and manner of its commission. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors. In Shyam Narain vs State (NCT of Delhi), (2013) 7 SCC 77, it was pointed out that sentencing for any offence has a social goal. Sentence is to be imposed with regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in the life of the victim but also a concavity in the social fabric. The purpose of just punishment is that the society may not suffer again by such crime. The principle of proportionality between the crime committed and the penalty imposed are to be kept in mind. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166, the Supreme Court referred the judgments in Jameel vs State of UP (2010) 12 SCC 532, Guru Basavraj vs State of Karnatak, (2012) 8 SCC 734, Sumer Singh vs Surajbhan Singh, (2014) 7 SCC 323 , State of Punjab vs Bawa Singh, (2015) 3 SCC 441, and Raj Bala vs State of Haryana, (2016) 1 SCC 463 and has reiterated that, in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The supreme court further said that courts must not only keep in view the right of victim of crime but also society at large. It is also well settled that in certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect - propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value based social mainstream may be the guiding factors. Needless to emphasise, these are certain illustrative aspects put forth in a condensed manner
38. In the instant case, it is clear from the record that now appellant is aged about 60-61 years. The alleged incident took place 14.11.1981 and since then period of about 38 years has already been passed. In the incident two minor children have sustained knife injuries as well injuries caused in strangulation. PW-4 Dr Roshan Lal has stated that injuries were dangerous to life. This appeal is pending since 1983 and accused is facing sword of proceedings since last four decades and that accused-appellant alone cannot be held responsible for long delay in disposal of this appeal. Though considering the nature of injuries and gravity of offence as the victims were minor children, accused-appellant does not deserves leniency, but this fact cannot be ignored that this appeal is pending since 1983 and that now, accused-appellant Jiya Lal is aged about 60 years. In view of this fact it appears that ends of justice would met if sentence of accused-appellant is reduced to two years rigorous imprisonment along with some substantial amount of fine.
39. In view of the aforesaid, conviction of accused-appellant under Section 307/34 IPC is upheld but sentence awarded by the trial Court is modified and accused-appellant Jiya Lal is sentenced to two years rigorous imprisonment and fine of Rs 15,000/ (Rs. Fifteen Thousands Only) under Section 307/34 IPC. In default of payment of fine, he shall undergo six months additional imprisonment. He must be given benefit of provisions of Section 428 CrPC in accordance with law. Out of total fine so deposited before the trial court, Rs. 5000/- each shall be paid to injured Yogesh and Lokesh (Rs 5,000/ to Yogesh and Rs 5,000/ to Lokesh) by the trial court. Accused-appellant Jiya Lal shall be taken into custody to serve out remaining sentence.
40. Appeal is partly allowed in above terms.
41. A copy of this judgment along with record of trial court be sent to the court concerned.
Dated: 19.05.2020 Mohit Kushwaha (Raj Beer Singh, J)