Allahabad High Court
Narvada And Others vs The State on 1 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 2062
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 10 Reserved Case :- CRIMINAL APPEAL No. - 746 of 1983 Appellant :- Narvada And Others Respondent :- The State Counsel for Appellant :- Nagendra Mohan Counsel for Respondent :- Govt.Advocate Hon'ble Ved Prakash Vaish,J.
Hon'ble Mohd. Faiz Alam Khan,J.
(Delivered by Hon'ble Mr. Justice Mohd. Faiz Alam Khan) Heard Shri Nagendra Mohan, learned counsel for the appellants and Ms. Nand Prabha Shukla, learned AGA for the State and perused the record.
1. This criminal appeal has been filed by the appellants- Narvada, Mashaley, Sukkhi, Jaswant and Gajraj against the judgment and order dated 7.10.1983, passed by Vth Additional Sessions Judge, Hardoi in Sessions Trial No. 67 of 1983, convicting the appellants no. 1,2 and 3 under Section 148 IPC and appellants no.4 and 5 under Section 147 IPC and further all the appellants under Section 302/149 IPC and sentencing them to 2 years R.I., 1 year R.I. and imprisonment for life respectively. The appeal with regard to the appellant no.2 Mashaley has been abated on account of his death vide order dated 01.12.2015 and of appellant Sukkhi on 01.07.2019 on account of his death..
2. At the outset we would like to refer the following observations of Hon'ble Supreme Court in State (Delhi Admn.) v. Laxman Kumar MANU/SC/0109/1985, quoted in Krishna Mochi and Ors. vs. State of Bihar MANU/SC/0327/2002,by Hon'ble Mr Justice M.B. Shah :-
"Mankind has shifted from the state of nature towards a civilized society and it is no longer the physical power of a litigating individual or the might of the ruler nor even the opinion of the majority that takes away the liberty of a citizen by convicting him and making him suffer a sentence of imprisonment. Award of punishment following conviction at a trial in a system wedded to rule of law is the outcome of cool deliberation in the court room after adequate hearing is afforded to the parties, accusations are brought against the accused, the prosecutor is given an opportunity of supporting the charge and the accused is equally given an opportunity of meeting the accusations by establishing his innocence. It is the outcome of cool deliberations and the screening of the material by the informed mind of the Judge that leads to determination of the lis..."
3. The prosecution story as unfolds from record of the subordinate court is that a written application was submitted by informant Suresh Pal Singh son of Natthu Singh on 5.8.1982 at 11.15 A.M at Police Station Behta Gokul District Hardoi, alleging that today at about 9.00 A.M. his father Natthu Singh and uncle Sobaran Singh along with Balvant Pasi were returning from their fields and when they reached near Kahjuria situated towards east of village, the accused persons Narvada, Mashaley and Sukkhi armed with guns and Gajraj and Jaswant armed with Lathis emerged out from behind the bushes and Khajuria. Narvada challenged his father Natthu Singh and commanded other accused persons to kill him. All five accused persons surrounded his father (Natthu Singh) and uncle (Sobaran Singh) and they fired 5 to 6 shots which hit Natthu Singh and Sobaran Singh and they succumbed to the injuries on the spot, instantly. Balvant Pasi made a hue and cry which attracted Mahesh son of Balwant, Natthu Kachi son of Hori and Ram Chandra son of Ram Swaroop who were grazing their cattles nearby. He also rushed to the spot and challenged accused persons, on which accused Gajraj and Jaswant assaulted both the persons with Lathis. All accused persons after committing the crime fled away towards the east.
4. It is further stated that about 7½ years ago the father of accused Narvada, namely, Bandha was murdered and Natthu Singh, Sobaran Singh and Balwant were charged for his murder and on the basis of this enmity Narvada and other co-accused persons has murdered his father and uncle.
5. On the basis of this application (Exbt. Ka-1) an FIR (Exbt . Ka-2) was registered at 11.15 A.M. at Case Crime No.118 of 1982, under Sections 147,148, 149, 302 IPC against the above mentioned five accused persons. An entry of the same was also made in the General Diary (Exbt . Ka-3) and the investigation of the case was entrusted to Shri Jai Chand Singh, who at that time was not available at the Police Station and therefore Sub Inspector Shri Shyam Singh Parihar proceeded towards the spot.
6. Sub Inspector Shyam Singh after arriving at the spot prepared Inquest report Exbt.- Ka-8, Photo Lash, Exbt.- Ka-9, Challan Lash Exbt.-Ka -10,Report Exbt.-Ka-11, Inquest Report Exbt.-Ka-12, PhotoLash Exbt.-Ka13,ChallanLash, Exbt. Ka-14,Memo blood stained soil, Exbt .-Ka-16, Memo simple soil Exbt.-Ka-17 pertaining to the dead bodies of Natthu Singh and Sobaran Singh and with the letter of request for post mortem, the dead bodies were handed over by him to Constable Siddh Nath who carried the dead bodies along with the relevant papers to District Hospital, Hardoi.He also collected blood stained and simple soil from the spot and sealed it in separate containers.
7. S.H.O. Shri Jai Chand Singh also arrived at the spot at about 5.45 P.M. and took over the investigation from Shri Shyam Singh Parihar and recorded the statement of informant Suresh Pal Singh and on his identification inspected the spot and prepared site plan (Exbt. Ka-4). He also recorded the statement of Balwant and other witnesses on 6.8.1982.
8. On 6.8.1982 the dead bodies of Nathu Singh and Sobran singh were brought at District Hospital, Hardoi. The postmortem on the dead body of Natthu Singh was conducted on same day at 2.15 P.M. by PW 4 Dr. R.M. Gupta and following ante-mortem injuries were noted:-
(1) Lacerated wound 2 cms. X ½ cms. Bone deep on right side head 10 cms. above in front of right root of ear. Obliquely placed.
(2) Lacerated wound 3 cms. X 1.5 cms. X bone deep on head, right side 1 cm. Infront and just below injury no.1.
(3) Lacerated wound 5 cms. X1 cm. X bone deep right side forehead obliquely placed, lower end ending at lateral end of right eye brow.
(4) Lacerated wound 3 cms. X 1 cm. X muscle deep on right side face 1 cm. Below to right lower eye lid, obliquely placed.
(5) Lacerated wound 5 cms. at outer region of right ear middle part missing and this lacerated wound curving and dividing the lobule of ear in two parts.
(6) Two gun shot wounds of entry 1.5 cm. X 1 cm. ½ cm. apart from each other on right forearm medially middle third forearm. Margins inverted and lacerated.
(7) Gun shot wound of exit 3 cms. X 2 cms. On right forearm middle third, margin averted and lacerated. This injury was communicating to injury no.7. Direction upward laterally muscle deep.
(8) Multiple firearm wound of entry on right side chest in an area 9 cms. X 8 cms. X chest cavity deep each wound size 1 cm. X 1 cm. On and around the right nipple in between 11 to 6 O' Clock position. One fire arm wound of entry is just adjacent to right nipple at 2 O' Clock position, margins inverted and lacerated.
(9) One firearm wound of exit 1.5 cm. X 1.5 cm. on left out axillary line 15 cms. above and laterally to left nipple, at 2 O' Clock position margin averted and lacerated.
(10) One firearm wound of exit 1.5 cm. X 1.5 cm. on left shoulder 6 cms. below to tip of clavicle. Margin averted and lacerated.
Direction of fire arm wound of entry upward slightly backwards and to left side.
On internal examination the doctor found frontal forehead fractured, membranes lacerated and congested. Brain lacerated. 5Th, 6th and 7th ribs of right side fractured under injury no.8, 3rd, 4th and 5th ribs of left side fractured. Both pleura cavity lacerated at multiple places under injury no.8 and both lungs lacerated at multiple places. Liquid and faeces and gases present in the large intestines.
The doctor opined that the death of the dead body was caused about one day before the post-mortem examination due to shock and haemorrhage as a result of ante-mortem injuries found on the dead body.
9. On 6.8.1982 at 4 P.M. the above mentioned Dr. R.M. Gupta also conducted the post mortem on the dead body of deceased Sobaran and found following ante- mortem injuries on the dead body:-
(1) Lacerated wound 4 cms. X 1 cm. X scalp on head right side 14 cms. above and behind right root of ear obliquely placed, clotted blood present.
(2) Lacerated wound 3.5 cm. X ` cm. X scalp on head right side 2 cms. in front to injury no.1, vertically placed, clotted blood present.
(3) Lacerated wound 5 cms. X 1.5 cms. X bone deep vertically placed 5 cms. Above to root of right ear. Clotted blood present.
(4) Lacerated wound 3 cms. X 1 cm. X scalp deep on left side head 8 cms. above to the left eye-brow vertically placed, clotted blood present.
(5) Fire-arm wound of entry and exit on right arm lower posterienlly part 6 cms. x 6 cms. on reteral half of the wound margins are inverted and lacerated. Medially margin are averted and lacerated. There is a tissue loss of muscle and skin. Slightly blackening present on entry side.
(6) Firearm wound of entry on abdomen 4 cms. x 3 cms. x abdomen cavity deep, 2 cms. below to umbilicus from 6 to 8 O' Clock position. Blackening present around the wound.
The direction of injury no.5 was downwards and medially and direction of injury no.6 was backwards and slightly upwards.
On internal examination the doctor found peritoneum lacerated under injury no.6.
The doctor opined that the death of the dead body brought to him was caused due to shock and haemorrhage as a result of ante-mortem injuries found by him about one day before the post-mortem examination.
10. The Investigating Officer after completion of the investigation, submitted a charge sheet against all accused persons under Sections 147, 148, 149, 302 IPC.
11. The case being exclusively triable by the court of Sessions was committed to the Sessions Court Hardoi and charges under Sections 148, 302 read with 149 IPC were framed against the accused persons, Narvada, Mashaley and Sukkhi while charges under Sections 147, 302 read with 149 IPC were framed against the accused persons, Jaswant and Gajraj
12. All accused persons denied the charges, pleads not guilty and claimed trial.
13. Prosecution in order to prove the charges relied on following documentary evidence before the court below.
Sl. No. Description of Documents Exhibit Ka-
(1) Written Tehrir Ka-1 (2) FIR Chick Ka-2 (3) G.D. F.I.R. Ka-3 (4) Site Plan Ka-4 (5) Charge sheet Ka-5 (6) Postmortem report Ka-6 (7) Postmortem report Ka-7 (8) Inquest report Ka-8 (9) Photo Lash Ka-9 (10) Challan Lash Ka-10 (11) Report Ka-11 (12) Inquest Report Ka-12 (13) Photo Lash Ka-13 (14) Challan Lash Ka-14 (15) Report for Postmortem Ka-15 (16) Memo blood stained soil Ka-16 (17) Memo simple soil Ka-17 (18) Copy G.D. Ka-18 (19) Copy G.D. Ka-19
14. Apart from the above documentary evidence prosecution also examined following witnesses to bring home the charges against the accused persons.
(1) P.W. 1 Suresh Pal Singh (Informant) (2) P.W. 2 Balwant Singh (Eye witness) (3) P.W. 3 Ram Chandra (Eye witness) (4) P.W. 4 S.I. Jai Chand (Investigating Officer) (5) P.W. 5 Dr. R.M.Gupta (who conducted post - mortem) (6) P.W. 6 S.H.O.Shyam Singh (Investigating Officer) (7) P.W.7 Constable Siddh Nath (who carried dead body for P.M.) (8) P.W. 8 Constable Gopi Lal Pathak (G.D. Scribe)
15. After completion of the prosecution evidence statement of accused/ appellants was recorded under Section 313 of the Cr.P.C. wherein accused-appellant Narvada denied the evidence produced by the prosecution and further stated that in a case of 307 IPC instituted against him Balwant and Ram Chandra were witnesses and also that at about 7 ½ years before the incident, his father was murdered and two deceased persons Natthu Singh and Sobaran Singh and also Balwant Singh were charged for his murder and the case was pending at the time of incident. Accused Mashaley and Sukkhi, in their statement recorded under Section 313 of the Cr.P.C. have denied any ill will or grudge against both the deceased persons and accused Mashaley stated that there had been a quarrel between him and witness Balwant Pasi and the witnesses are inimical towards him. While accused Sukkhi claimed that Balwant was a witness against him in a case pertaining to Section 307 IPC. Accused Gajraj also denied the evidence of the prosecution and stated that witness Balwant had stolen and sold his buffalo pertaining to which an FIR was lodged by him and Balwant is having enmity due to this. Accused Jaswant in his statement under Section 313 of the Cr.P.C. also denied the evidence of the prosecution and stated that all the witnesses are from the party of Suresh. All the accused persons have claimed that they have been falsely implicated on the basis of enmity.
16. Before proceeding further it is in the interest of things that a brief account of the testimony of the prosecution and defence witnesses be stated, so as the arguments of rival parties could be appreciated in a better way.
17. P.W. 1 Suresh Pal in his evidence has stated that about 7 ½ years before the incident, father of Narvada, namely, Bandha was murdered. His father Natthu Singh and uncle Sobaran Singh, Balwant Pasi and one Jokhai were charged for his murder and accused persons were having enmity with him and his family members on this score.
18. He further stated that on 5.8.1982 at about 6.00 A.M. his father, Natthu Singh, uncle- Sobaran and Balwant Pasi went towards the east of village to look-after their fields. Since they did not return back for long, he at 8.00 A.M. started towards the fields, in search of them. When he reached near metallic road situated towards the East of village, he saw Balwant raising alarm and found his father and uncle towards the North of him and all above named accused persons were also there.
19. He further stated that accused, Narvada, Mashaley and Sukkhi were armed with guns and accused, Gajraj and Jaswant were armed with Lathis and they killed his father and uncle by firing from guns and assault given by the Lathis. According to him Ram Chandra, Natthu Kachi and Mahesh were also present at the spot and when they challenged, the accused persons fled away towards the east. His father and uncle both died on the spot.
20. P.W.2- Balwant is the eye witness of the incident, who at the time of the occurrence was accompanying both the deceased persons. He stated that about 9 months before Natthu Singh and Sobaran Singh were done to death. He, along with Natthu Singh and Sobaran Singh was returning towards the village through the metallic road from their fields. When they reached near Khajuria and bushes, Narvada, Mashaley and Sukkhi armed with guns and Jaswant and Gajraj armed with Lathis, emerged out from behind the bushes. Narvada challenged and commanded others to kill them, thereafter Narvada fired at Natthu Singh, who fell down, while Gajraj started assaulting him by Lathi. Sukkhi fired two shots from his Gun towards Sobaran, who also fell down and Jaswant assaulted him with Lathi. Thereafter when Natthu Singh attemped to stand up, Mashaley fired at him. He again stated that he by mistake has stated that Sukkhi made two fires, while in fact second fire towards Sobaran was made by accused narvada. According to this witness incident , apart from him, was witnessed by Natthu Kachi, Mahesh, Suresh and Ram Chandra. When they went near Natthu Singh and Sobaran both were dead.
21. P.W.3- Ram Chandra is also an eye witness of the incident, who has deposed that Natthu Singh and Sobaran Singh were murdered at about 8.00 A.M. about nine months before recording for his statement. He along with Mahesh and Natthu Kachi were grazing cattle, about 100 paces away from the spot, when he heard alarm and sound of fire and advanced towards spot and saw that accused- Narvada, Mashaley and Sukkhi were holding guns in their hands while Jaswant and Gajraj were holding Lathis. Narvada fired towards Natthu Singh while Mashaley towards Sobaran and Sukkhi fired towards Natthu Singh. Accused Gajraj and Jaswant assaulted both Natthu Singh and Sobaraban Singh by Lathis. It is further stated by him that two gun shots were sustained by Sobaran Singh and second fire was fired by Sukkhi and after committing crime the accused persons fled towards the east. He saw the incident from north side of the spot and towards the southern side of the spot, Suresh and Balwant were standing, who where making alarm. It is further stated by him that both Natthu Singh and Sobaran Singh died at the spot.
22. P.W.4- Sub Inspector Jai Chandra Singh has conducted investigation and submitted the charge sheet. He has proved various stages of investigation and also proved Chick FIR, G.D. Entry, Site Plan and charge sheet as Exbts Ka- 2 to Ka-5.
23. P.W. 5- Dr. R.M. Gupta performed the postmortem on bodies of both the deceased persons and prepared postmortem reports and proved the report as Exbt. Ka-6 and Exbt. Ka-7 The report and its contents has been elaborately reproduced in paragraph no. 8 and 9 of this judgment.
24. P.W.6- S.H.O. Shyam Singh Parihar is the witness, who was present at the Police Station when the FIR was lodged and in absence of S.H.O. Jai Chandra Singh,he proceeded towards the spot and has proved to perform inquest reports and other relevant papers necessary for postmortem as Exbt. Ka-8 to Exbt . Ka-15 . He also stated to have collected the sample and blood stained soil from the spot and also that both the dead bodies were handed over to Constable Siddh Nath and Chaukidar of the village for taking them for postmortem.
25. P.W.7- Constable Siddh Nath has deposed to have brought the dead bodies to Sadar Police Line along with Chaukidar Beni and also that on the next day i.e. 6.8.1982, he handed over the bodies and papers to the doctor concerned at District Hospital, Hardoi.
26. P.W.8- Head Constable Gopi Lal is the person who has proved deposit of containers containing simple and blood stained soil in the Police Station and also of making entry of the same in the G.D. and proved the same as Exbt. Ka-18. He also proved deposit of pellets contained in two envelops brought by Constable Siddh Nath from postmortem house and also to have made an entryof the same in the G.D. as Exbt. Ka-19.
27. The accused persons in their defence has produced D.W.1- Constable Chandra Pal Singh, who deposed to have brought Register no. 8 of the Police Station and stated that the deceased Natthu Singh was accused in one case of murder. He further deposed that three cases i.e. under Section 307 IPC 110 Cr.P.C. and Section 394 IPC are also registered against the witness Balwant.
28. We have heard Shri Nagendra Mohan, learned counsel for the appellants as well as learned AGA for the State in depth and have also perused the record.
29. From the above evidence certain facts appear to be undisputed that accused Mashaley (died during pendency of appeal) and Sukkhi are real brothers. Accused Narvada is their cousin brother and accused Gajraj and Jaswant are from their party. It is also apparent that about 7 ½ years before the incident at hand, father of Narvada (Bandha) was murdered and Natthu Singh, Sobaran Singh along with Balwant and Jokhaee were charged for his murder and the case was pending at the time of the incident. It is also evident that accused Gajraj, Jaswant and Narvada were witnesses in that case. Therefore both the parties were highly inimical towards each other and were having very bitter relations.
30. Learned counsel for the appellants while referring to the impugned judgment and order of the court below submits that whole story of the prosecution is based on false facts and the accused persons have been roped in due to enmity. He further submits that both the deceased persons, namely, Natthu Singh and Sobaran Singh have not died in the alleged occurrence, as claimed by the prosecution. He overwhelmingly submits that both the deceased persons were actually done to death by some other persons in the early hours of the morning or in the intervening night of 4-5.8.1982. It is also submitted that the deceased was a history sheeter and could have been murdered by any one. To further substantiate his argument, Shri Nagendra Mohan, learned counsel for the appellants submits that the fact of the death of the two deceased persons in the early hours on 5.8.1982 or in the intervening night 4-5.8.1982 is well established by the postmortem reports of both the deceased persons as in the postmortem report of both the deceased persons in small intestines faecal matter along with gases have been found, which establishes that the deceased persons had not eased themselves and this fact is in direct contrast of the testimony of P.W.1- Suresh Pal Singh who claimed that Natthu Singh, on the fateful day, had gone to ease himself before going to his fields. Therefore, according to him, the court below had materially erred in not taking into consideration this material point.
31. Shri Nagendra Mohan, learned counsel for the appellants, further submits that testimony of witness of fact, namely, P.W. 1- Suresh Pal Singh, P.W. 2 Balwant Pasiand P.W.3 Ram Chander, in the facts and circumstances of the case, is not reliable and in fact they have not witnessed any occurrence. There are material contradictions in their testimonies in the manner of committing crime by the accused persons as well as in the time and place of the occurrence. Therefore, the court below has materially erred in accepting their unreliable and untruthful testimony.
32. Shri Nagendra Mohan, learned counsel for the appellants, overwhelmingly submits that the FIR in this case is ante-timed and ante-dated. To substantiate his points he referred to the undue delay happened in the postmortem of the dead bodies of the two deceased persons and also that the statement of informant, P.W.1- Suresh Pal Singh was not recorded at the Police Station when he was present in the Police Station for the purpose of lodging FIR. It is also highlighted by him that the statement of other witnesses were also not recorded on the same day i.e. 5.8.1982. He further submits that cuttings and over-writings in the inquest reports of both the deceased persons along with other infirmities mentioned above, clearly reveals that the FIR of the case was not in existence at the time of inquest and post mortem and the same has been ante-timed as well as ante-dated and therefore the prosecution case could not be believed.
33. Learned counsel for the appellants overwhelmingly emphasized that the witness Balwant Singh is a star witness of this case. He, like the other two deceased persons was having equal enmity with the accused persons but surprisingly not a single scratch has been caused by the accused persons on his person and this circumstance clearly reveals that by any stretch of imagination he could not be in the company of deceased persons and he is not a eye witness of the incident.
34. It is further submitted by learned counsel for the appellants that the conduct of P.W.1- Suresh Pal Singh as well as of witness Balwant Singh for not attempting to save their father and uncle, is highly improbable. Moreover, the P.W. 1, Suresh Pal Singh in his statement has admitted that he after returning from the Police Station did not go to the spot but remained at his home in the same village where the bodies of his father and uncle were lying unattended. It is highly improbable and renders the testimony of this witness as untruthful. He overwhelmingly submits that this is a case where glaring and material contradictions are apparent in the testimony of factual witnesses and therefore, the trial court has erred in convicting the accused persons and they are liable to be acquitted of the charges framed against them.
35. Learned AGA, per contra submits that accused persons were having a strong motive to eliminate the deceased persons as they had murdered the father of the accused Narvada. It is further submitted by him that enmity in between the prosecution side and the accused persons side is well established. The occurrence has happened on 5.8.1982 at about 8-9 A.M. in the morning and the same has been witnessed by PW-2 Balwant Pasi who was accompanying deceased persons, as well as by PW-1 Suresh Pal Singh son of deceased Natthu Singh and other witnesses including PW-3 Ram Chandra who were grazing their animals near the spots. He overwhelmingly submits that the presence of faecal matter in the large and small intestines and gases is not of any significance and it depends on various factors including digesting capability of a particular person and also on his bowl movements and even after attending call of nature faecal matter may be found in the large intestines.
36. It is further submitted that P.W.5- Dr. R.M. Gupta has categorically opined that both the deceased persons might have been done to death about 8.00 to 9.00 A.M. in the morning on 5.8.1982. The witnesses are natural and there is no material contradictions in their statements pertaining to commission of the crime by accused persons. The delay in performing postmortem has been explained by P.W.7- Constable Siddh Nath who brought dead bodies to the District Hospital, Hardoi and the fact of not recording the statement of P.W. 1- Suresh Pal Singh at the Police Station has also been explained by P.W.4 Shyam Singh Parihar who has stated that he asked Suresh Pal Singh to rush the spot and himself proceeded towards the village on bicycle. It is also submitted that the criminal background of the deceased Natthu Singh and Sobaran Singh is not of any benefit to the accused persons, as no right is conferred on any person to murder even any hardened criminal.
37. It is further submitted by learned AGA that in both the inquest reports the crime number and other details have been mentioned and this argument of learned counsel for the appellants is not tenable that some minor over cuttings will vitiate the whole prosecution case. He overwhelmingly submits that irregularities and illegalities committed during the course of investigation shall not be a ground to discard the reliable evidence of the prosecution witnesses. Therefore the prosecution has proved its case beyond all reasonable doubts and there is no occasion to interfere in the otherwise well reasoned judgment of the subordinate court.
Learned AGA relied on following case laws:-
"(I) Radha Mohan Singh Alias Lal Saheb and others Versus State of U.P. reported in (2006)2 Supreme Court Cases 450.
(II) Susanta Das and others Versus State of Orrissa reported in (2016)4 Supreme Court Cases 371.
(III) Surendra Pal and others Vs. State of Uttar Pradesh and another reported in (2010)9 Supreme Court Cases 399.
(IV) Bur Singh and another Vs. State of Punjab reproted in (2008)16 Supreme Court Cases 65.
(V) Chapter 15 of Modi's- A Text Book of Medical Jurisprudence and Toxicology 25th Edition."
At the outset we would like to observe that there cannot be any doubt in the proposition that Section 134 of Evidence Act do not require any particular number of witnesses to prove any fact. Plurality of witnesses in a criminal trial is not the legislative intent, it is not the quantity but quality which matters. Therefore, if the testimony of a witness is found reliable on the touch stone of credibility, accused can be convicted on the basis of testimony of even single witness. This principle was highlighted in Vadivelu Thevar V/s state of Madras; AIR 1957 SC 614, wherein it is held by Hon,ble Apex Court that "The contention that in a murder case, the Court should insist upon plurality of witnesses, is much too broadly stated."
"The Indian Legislature has not insisted on laying down any such exceptions to the general Rule recognized in Section 134 quoted above. The Section enshrines the well recognized maxim that "Evidence has to be weighed and not counted." Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon.
"It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstance of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution."
"Generally speaking oral testimony in this context may be classified into three categories, namely (1) wholly reliable (2) wholly unreliable (3) neither wholly reliable nor wholly unreliable. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The Court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony."
Vadivelu Thevar case (supra) was referred to with approval in Jagdish Prasad v. State of M.P. (AIR 1994 SC 1251). It was held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 (in short 'the Evidence Act'). But, if there are doubts and suspicion about the testimony of such a witness the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses.Therefore, it is not the number, the quantity, but the quality which is material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth around it, is cogent, credible and trustworthy, or otherwise.
In Lallu Manjhi vs. State of Jharkhand, AIR 2003 SC 854 Hon,ble Supreme Court held in Para 10, that "The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness."
In AIR 2003 SUPREME COURT 3617, Sucha singh v/s State of Punjab Honble Apex Court after considering Masalti and others vs. State of U.P. MANU/SC/0074/1964, State of Punjab v. Jagir Singh (AIR 1973 SC 2407) and Lehna v. State of Haryana (2002 (3) SCC 76), opined as under:- "Stress was laid by the accused-appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that, it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. (See Nisar Ali v. State of Uttar Pradesh (AIR 1957 SC 366). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. (See Gurcharan Singh and another v. (AIR 1956 SC 460). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Nayata and another v. State of Madhya Pradesh, 1972 3 SCC 751) and Ugar Ahir and others v. State of Bihar (AIR 1965 SC 277). An attempt has to be made to, as noted above, in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. (See Zwinglee Ariel v. State of Madhya Pradesh (AIR 1954 SC 15) and Balaka Singh and others v.state of punjab (AIR 1975 SC 1962). As observed by this Court in State of Rajasthan v. Smt. Kalki and another (AIR 1981 SC 1390), normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi and others v. State of Bihar etc. (2002 (4) JT (SC) 186)."
In State of Gujarat vs J.P Varu reported in 2016 Cr.L.J 4185 (Supreme Court) it has been propounded by the Supreme Court that, " Para 13 the burden of proof in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted."
In AIR 2013 SUPREME COURT 3150, Raj Kumar Singh alias Raju alias Batya v. State of Rajasthan Hon,ble Supreme Court held that Para 17 "Suspicion, however grave it may be, cannot take place of proof, and there is a large difference between something that 'may be' proved and 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between 'may be' and 'must be' is quite large and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between 'may be' true and 'must be' true, the Court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The Court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."
Therefore, the gist of the aforesaid law propounded by the Hon'ble Supreme Court is that every accused person is presumed to be innocent till the prosecution through reliable and acceptable evidence proves its case beyond all reasonable doubt. In other words, in criminal trial, it is the duty of the prosecution to prove its case beyond all reasonable doubt. However, it is not each and every doubt which can be termed as reasonable and benefit of only that doubt can be claimed by the accused persons ,which is reasonable in the facts and circumstances of the case and which grow out of the evidence , itself.
Moreover In Gangabhavani vs. Rayapati Venkat Reddy and Ors. , MANU/SC/0897/2013 Hon'ble Supreme Court held as under :-
"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: Bhagaloo Lodh and Anr. v. State of U.P. MANU/SC/0700/2011 : AIR 2011 SC 2292; and Dhari and Ors. v. State of U.P. MANU/SC/0848/2012 : AIR 2013 SC 308).
12. In State of Rajasthan v. Smt. Kalki and Anr. MANU/SC/0254/1981 : AIR 1981 SC 1390, this Court held:
"5A. As mentioned above the High Court has declined to rely on the evidence of P.W. 1 on two grounds: (1) she was a "highly interested" witness because she "is the wife of the deceased"......For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True it is she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested'. In the instant case P.W. 1 had no interest in protecting the real culprit, and falsely implicating the Respondents."(Emphasis added)(See also: Chakali Maddilety and Ors. v. State of A.P. MANU/SC/0609/2010 : AIR 2010 SC 3473).
13. In Sachchey Lal Tiwari v. State of U.P. MANU/SC/0865/2004 : AIR 2004 SC 5039, while dealing with the case this Court held:
"7....Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witness' is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter explaining their presence."
14. In view of the above, it can safely be held that natural witnesses may not be labelled as interested witnesses. Interested witnesses are those who want to derive some benefit out of the litigation/case. In case the circumstances reveal that a witness was present on the scene of the occurrence and had witnessed the crime, his deposition cannot be discarded merely on the ground of being closely related to the victim/deceased."
In Bhagaloo Lodh and Ors. vs. State of U.P. reported in MANU/SC/0700/2011 it was held as under :-
"14. Evidence of a close relation can be relied upon provided it is trustworthy. Such evidence is required to be carefully scrutinised and appreciated before resting of conclusion to convict the accused in a given case. But where the Sessions Court properly appreciated evidence and meticulously analysed the same and the High Court re-appreciated the said evidence properly to reach the same conclusion, it is difficult for the superior court to take a view contrary to the same, unless there are reasons to disbelieve such witnesses. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are inter-related to each other or to the deceased. (Vide: M.C. Ali and Anr. v. State of Kerala MANU/SC/0247/2010 : AIR 2010 SC 1639; Myladimmal Surendran and Ors. v. State of Kerala MANU/SC/0670/2010 : AIR 2010 SC 3281; Shyam v. State of Madhya Pradesh MANU/SC/7112/2007 : (2009) 16 SCC 531; Prithi v. State of Haryana MANU/SC/0532/2010 : (2010) 8 SCC 536; Surendra Pal and Ors. v. State of U.P. and Anr. MANU/SC/0713/2010 : (2010) 9 SCC 399; and Himanshu @ Chintu v. State (NCT of Delhi) MANU/SC/0006/2011 : (2011) 2 SCC 36).
In view of the law laid hereinabove, no fault can be found with the evidence recorded by the courts below accepting the evidence of closely related witnesses."
It is therefore settled that merely because witnesses are closed relatives of victim, their testimonies cannot be discarded. Relationship with one of the parties is not a factor that affects credibility of a 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 the evidence to find out, whether it is cogent and credible evidence.
Therefore the evidence available on record is desired to be appreciated in the background of above mentioned settled principles of appreciation of evidence.
38. Now we deal the first argument of Shri Nagendra Mohan, learned Counsel for the appellants that both the deceased persons, namely, Natthu Singh and Sobaran Singh were done to death some time in the intervening night of 4-5.8.1982 or in the early hours of the morning of 5.8.1982 by some unknown persons and due to enmity, the appellants have been falsely implicated.Learned Senior Counsel has relied on the report of postmortem of both the deceased persons wherein liquid faecal and gases in small intestines and faecal matter and gases in large intestines were found. Highlighting the above factual matrix, he submits that both the deceased persons had not attended the call of nature till they were done to death and in villages normally villagers before going any where first go to ease themselves. The PW-1 has admitted that deceased Natthu Singh went to ease himself before going to see his fields. Therefore these facts create reasonable doubt in the story of prosecution.
39. Keeping in view the above submissions of learned counsel for the appellants, if we peruse the evidence of P.W. 5- Dr. R.M. Gupta, who conducted the postmortem on the bodies of both the deceased persons, we find that he has deposed that stomach of Natthu Singh was empty, Liquid faecal and gases were found in his small intestines while faecal matter and gases were found in his large intestines. Similarly Dr. R.M. Gupta has also deposed to have found liquid faecal + gases in small intestines and faecal matter + gases in large intestines of deceased Sobaran Singh.
40. This witness has categorically stated that the death of both the deceased persons i.e. Natthu Singh and Sobaran Singh has been caused about 24 hours before the postmortem. It is also opined by him that the death of both deceased persons might have been caused on 5.8.1982 at about 8 A.M.. He also opined that both the deceased persons Natthu Singh and Sobaran Singh may or may not have attended the call of nature before their death. However, he categorically opined that there is little possibility of Natthu Singh dying at 3 or 4 A.M.
41. P.W. 1- Suresh Pal Singh in his cross examination has admitted that his father used to go to attend nature's call in the morning and on the day of incident also he went to his fields after easing himself. No such statement has been made by him pertaining to the other deceased person, namely, Sobaran Singh. He has also stated in his cross examination that occasionally his father and uncle both go to look after their fields. Therefore in absence of any evidence with regard to the deceased Sobaran Singh that he went to the fields after easing, no inference could be drawn that Deceased Sobaran Singh also eased himself before going to the fields. So far as Natthu Singh is concerned, even if it is taken that before going to his field, he went to ease himself, even this circumstance could not draw any adverse inference on two scores; firstly, the presence of faecal matter in large intestine is not a decisive and conclusive factor to draw an inference that the deceased Natthu Singh has not eased himself. Presence of faecal matter in the large intestine, even after some one has eased, is not rare and it depends on so many factors including the digesting system of the person concerned and also as to whether he is suffering from constipation, as well as also on the quality and time of food taken by him. Many healthy persons are usually seen going many times in the morning to ease themselves.
42. Hon'ble Supreme Court in Ram Praksh and others vs. The State of Uttar Pradesh reported in Manu/SC/0062/1968, while dealing with a similar argument held in pargraph 5 of the report as under:-
"5. On the second point, it is urged, that according to the medical evidence the death might have been caused on the night intervening 18th and 19th July, 1966, Dr. S. P. Gulati P.W. 4, who had performed the postmortem examination stated that faecal matter and gas were present in the small and large intestines of Ganeshi Lal; owing to this reason he thought it probable that the deceased had not eased himself till the time of receiving the injuries. Mr. Anthony says that it is well-known that a person with normal habits particularly in villages empties his bowels early in the morning. The presence of the faecal matter in the small and large intestines showed that Ganeshi Lal must have died within some hours of his taking food on the previous night namely by the midnight of 18th and 19th July, 1966. This, according to Mr. Anthony, established that the prosecution case about the time of death cannot be accepted. Reliance has been placed on the statement in Modi's Medical Jurisprudence and Toxicology, 10th Ed., p. 151, that one can give an opinion that the death occurred some time after the deceased go up in the morning if the large intestines was found empty of faecal matter. It is submitted that conversely it can well be said that if the large intestine is found full of faecal matter it should be inferred that death did not take place in the morning. The learned trial judge discussed this matter in his judgment and disposed it of by saying that there was no proof that before the occurrence Ganeshi Lal had eased himself and that even if he had gone for that purpose there was no presumption that his bowels had moved. According to him, the question of time had to be decided on the basis of direct and other evidence on the record. We concur in that view and find it difficult to accept that the question of time should be decided only by taking into consideration the fact that faecal matter was found in the intestines of the deceased. This may be a factor which might have to be considered along with the other evidence but this fact alone cannot be decisive."
43. Keeping in view the above, factual and legal position, presence of faecal matter in the large intestine of the deceased persons could not be conclusive or determinative circumstance to disbelieve the prosecution story, specially in the back ground of the fact that Dr. R.M. Gupta (P.W.5) has specifically opined that possible time of death of both the deceased persons may be about 8.00 A.M. on 5.8.1982. Therefore in view of above we are not inspired by this argument of learned counsel for the appellants.
44. Second argument advanced by learned counsel for the appellants is that the FIR in the instant case had been ante-timed and ante-dated as the statement of the informant, P.W.1- Suresh Pal Singh under Section 161 of the Cr.P.C. was not recorded at the Police Station where he was present for the purpose of lodging of FIR and also that in the inquest report there are cuttings in the column of time of lodging of FIR and time of starting of inquest with regard to the inquest of Sobaran Singh as well as the description of arms etc. has not been given in the inquest reports.
45. We have perused the record in the back ground of the argument advanced by learned Senior Counsel and have found that P.W. 1- Suresh Pal Singh has stated, in his evidence, to have lodged the FIR on the day of occurrence i.e. 5.8.1982. In his cross examination he has stated that he wrote the application (Tehrir) at his home and 15-20 minutes were consumed therein. He further stated that about 2 hours were consumed in reaching the Police Station. He did not meet Daroga Ji till he leaves Police Station. It is further stated by him that he remained at the Police Station for about half an hour and returned to his village within 4-1/2 hours. In the FIR the time of incident has been written as 9 A.M., however, in his statement he has stated that the time of occurrence was in between 8 to 9 A.M. It is further stated that no body was having a watch with him. His statement under Section 161 of the Cr.P.C. was recorded by the Investigating Officer at about 6 P.M. on the day of occurrence at the spot. He fuhrer stated that his mind was not working properly so he wrote in the FIR whatever comes to his mind at that moment.
46. A perusal of Exbt. Ka-3, which is a copy of General Diary dated 5.8.1982, shows that on the basis of an application submitted by P.W.1- Suresh Pal Singh the FIR was lodged at Case Crime No. 118 of 1982 under Sections 147, 148, 149, 302 IPC. On 05.08.1982 at 11.15 a.m.. This copy of general diary has been proved by P.W.4- Jai Chand Singh who had seen head moharrir Gopi Lal and recognize his hand writing. Keeping this in view, it is established that the FIR in the matter was registered at about 11.15 A.M. on 5.8.1982 which is prompt, keeping in view the distance of Police Station from the spot .
47. P.W. 1- Suresh Pal Singh had also admitted that his statement was recorded by the Investigating Officer at 6 P.M. at the spot on the date of occurrence. P.W.4- Jai Chand Singh, to whom investigation was entrusted was not available at the Police Station at the time of lodging of FIR and in his absence preliminary investigation had been done by PW-6 Sub Inspector Shyam Singh Parihar. P.W.4- Jai Chand Singh has corroborated the statement of P.W. 1- Suresh Pal Singh when he stated that he reached the spot about 5.45 P.M. on 5.8.1982 and took over the investigation and recorded the statement of P.W. 1- Suresh Pal Singh and on his pointing, also prepared site plan. He also stated to have recorded the statement of S.I. Shyam Singh Parihar and witness Balwant Singh on 6.8.1982. In his cross examination he stated that there was no eye witness present apart from P.W. 1- Suresh Pal Singh, when he reached the spot. In paragraph 14 of his cross examination, he specifically stated that he called the witnesses but they were not available. Surprisingly no question was put by defence to this witness or to P.W.6- S.O. Shyam Singh Parihar as to why the statement of P.W. 1- Suresh Pal Singh was not recorded at Police Station itself. However, P.W. 6- Shyam Singh Parihar in his statement has stated that FIR in this case was lodged in his presence and according to the general diary he departed from the Police Station to the place of occurrence at about 11.15 A.M. He asked Suresh Pal Singh to rush from Police Station and himself departed towards the village on bicycle and arrived at the spot around 1.30 P.M. Surprisingly no question was put to him as to why he did not record the statement of P.W. 1- Suresh Pal Singh at the time when he was at the Police Station for the purpose of lodging First Information Report. When no question with regard to not recording the statement of P.W. 1- Suresh Pal Singh at the Police Station was put to P.W.6- Shyam Singh Parihar, no benefit of it could be claimed by the defence subsequently, because no opportunity has been given to the witness to explain this circumstance. The defence cannot play hide and seek with the prosecution. It was the duty of the defence to put this circumstance specifically to the Investigating Officer or to the PW 6 Shayam Singh Parihar to provide an opportunity to the Investigating Officer or to Shyam Singh Parihar, to explain as to why the statement of P.W. 1- Suresh Pal Singh was not recorded at the Police Station itself.
Otherwise also it is apparent from the evidence available on record that within half an hour of the incident, P.W.1- Suresh Pal Singh, who at that time was of the age of about 17 years, left for Police Station and reached there at about 11.15 A.M. and got the FIR lodged. It is also apparent that S.H.O. of the Police Station, namely, P.W.4- Jai Chand Singh, to whom the investigation was entrusted, was not present at the Police Station. It is also apparent on record that P.W.6- Shyam Singh Parihar asked P.W.1- Suresh Pal Singh to rush to the spot and after reaching the village and after performing the proceedings of inquest etc., when P.W.4- Jai Chand Singh arrived at the spot at about 5.45 P.M. he (P.W.4- Jai Chand Singh) recorded the statement of P.W.1- Suresh Pal Singh at about 6 P.M. on 5.8.1982. Therefore the circumstance of not recording the statement of P.W.1- Suresh Pal Singh has been amply explained by evidence available on record and no adverse inference can be derived from it.
48. Now comes the question of some cuttings allegedly made on the inquest report of deceased Sobaran Singh and non mentioning of material particulars in the inquest reports of both Deceased persons and on the basis of it an argument has been placed by learned counsel for the appellant that till the inquest no FIR was in existence and the same has been ante-dated and ante-timed.
49. We have perused the record in the background of the argument advanced by learned Senior Counsel. As stated earlier when the First Information Report was lodged P.W.4- Jai Chand Singh , Station House Officer was not available at the Police Station and S.I. Shyam Singh Parihar (P.W.6) was present there and he arrived at the spot by bicycle at about 1.30 P.M. P.W.4- Jai Chand Singh, however, reached the spot at about 5.45 P.M. on 5.8.1982. P.W.6- Shyam Singh Parihar in his statement has admitted to have prepared the inquest reports pertaining to both the deceased persons. He in his cross examination has admitted that in the inquest report pertaining to Sobaran Singh the time of FIR was written as 9.00 A.M. and there after by making cutting on it, it was written as 11 A.M. Likewise in this inquest report starting time of inquest has been written as 11.20 A.M. and after cutting it was written as 13.30. Therefore it has been categorically admitted by this witness that after making cutting, corrections have been made by him in the inquest report of Sobaran Singh and also that signature has not been made by him on the cuttings. The statement of this witness clearly reveals that he has made some cuttings in the inquest report of Sobran Singh and thereby have corrected the time of lodging of FIR as 11.15 A.M. instead of 9.00 A.M. and the time of starting of inquest report as 13.30 instead of 11.20 A.M. In Bimla Devi and Ors. vs. Rajesh Singh and Ors., MANU/SC/1455/2015 held as under :-
"10. The next factual lacunae raised was overwriting in the inquest report. The inquest report by the police officer is prepared Under Section 174 of the Code of Criminal Procedure, 1973. The scope of the section is investigation by the police in cases of unnatural or suspicious death. However, the scope is very limited and aimed at ascertaining the first apparent signs of the death. Apart from this the police officer has to investigate the place wherefrom the dead body is recovered, describe wounds, fractures, bruises and other marks of injury as may be found on the body, stating in what manner or by what weapon or instrument, such injuries appear to have been inflicted. From the above, it thus becomes clear, that the section aims at preserving the first look at the recovered body and it need not contain every detail. Mere overwriting in the name of the informant would not affect the proceedings. The fact of homicidal death was not in dispute and the manner in which the death was occurred is also not disputed. Then merely name being overwritten will not help the defence, when the contents of the inquest report was supported by the eye witnesses and also the medical evidences."
50. We have very carefully perused the inquest reports of both the deceased persons available on record as Exbt Ka-8 and Exbt. Ka-12 and have found that in the inquest report of Natthu Singh( Exbt Ka-8) in the heading Case Crime No. 118 of 1982 under Sections 147, 148, 149, 302 IPC against Narvada and others has been written. The time of lodging of the FIR has been shown as 11.15 A.M. on 5.8.1982 and the starting time of inquest is written as 13.30 house (1.30 P.M.). The name of the informant in the inquest has been shown as Suresh son of Natthu Singh and it is also written that death has been caused by gun shot and other injuries. The closing time of the inquest is shown as 15.00 hours. The whole inquest report is prepared in one hand writing and in one ink, without any cutting. Therefore it is apparent that so far as the inquest report of deceased Natthu Singh is concerned the Case Crime Number, Sections, the name of the informant, the time of lodging of FIR, starting time of inquest, closing time of inquest, the manner whereby the deceased has been killed and also the name of the informant have been shown in the column earmarked for the same. In nutshell all particulars necessary, for the inquest is present in this inquest.
51. Now comes inquest of Sobaran Singh, which is available on record as Exbt. Ka-12, wherein also the Case Crime Number, Sections, against Narvada and others, name of the informant has been mentioned. The only dispute appears to be with the cutting pertaining to the time of lodging of FIR and start of inquest. Earlier it appears to be written as 9 AM and 11.15 A.M. but subsequently it was written as 11.15 A.M. and 13.30 hours. Surprisingly in the cross examination no question was put to P.W. 6- Shyam Singh Parihar by the appellants about the cutting made in the inquest report of Sobaran Singh and the only question which was put to him about the inquest report was non mentioning of the weapons of assault etc. Therefore no opportunity appears to have been given to P.W. 6- Shyam Singh Parihar to explain the circumstance under which the cutting in the first column of the inquest report pertaining to deceased Sobaran Singh was made by him. Therefore no benefit of such cutting can be claimed by the appellants.Perusal of both the inquest reports reveals that the inquest report of Natthu Singh was started at 15 hours and P.W.6- Shyam Singh Parihar in his evidence has stated to have reached the village at about 1.30 P.M., on the same day. Firstly he prepared the inquest report of deceased Natthu Singh(Exbt. Ka-8) and thereafter inquest of deceased Sobaran (Exbt. Ka-12) was started. When the inquest report of Natthu Singh (Exbt. Ka-8) was completed at 15 hours (3.00 P.M.) there was no occasion for the P.W. 6- Shyam Singh Parihar to start the inquest of deceased Sobaran Singh (Exbt. Ka-12) at 13.30 hours. That's why in the inquest of Sobran , in the first column, below 13.30 hours words 15 hours has been written and P.W.6- Shyam Singh Parihar in his cross examination has stated in paragraph 5 that below 13.30 hours, time 15 hours has been written, which clearly means that the inquest of deceased Sobaran was started on 15 hours (3 P.M.) and ended on 16.15 hours (4.15 P.M.). Apart from this in all the papers, prepared by P.W.6- Shyam Singh Parihar at the spot, for the purpose of postmortem of both the bodies, namely, Exbt. Ka-9 and Ka-13 sketch dead body, Exbt. Ka-10 and Ka-14 Chick R.I., Exbt. Ka-11 and Ka-15 Chick C.M.O., Exbt Ka-16 and Ka-17 Memo of blood stained and simple earth, Crime number of the case i.e. 118/1982 under Sections 147, 148, 149, 302 IPC has been written, which amply suggests that the FIR, in this case had come into existence before the inquest and the minor discrepancies occurring in the preparation of inquest reports are not of such magnitude, on the basis of which the case of the prosecution could be doubted. Had the FIR not been lodged prior to the inquest report, as claimed by the learned counsel for the appellants, it would have been impossible for P.W.6- Shyam Singh Parihar to have written crime number 118/1982 and other particulars of the FIR, including the penal sections and the name of the first accused, namely Narvada in the heading of the inquest report and other papers prepared by him for the postmortem. After going through the whole record and meticulously examining the inquest report and other papers prepared by P.W.6- Shyam Singh Parihar, we are convinced that the FIR is neither ante-timed nor ante- dated.
54. The next contention of learned counsel for the appellants is that FIR in this case was received in the office of Chief Judicial Magistrate on 13.9.1982 and therefore the delay in sending the report to the Magistrate casts doubt on the FIR and on prosecution case.
Perusal of Chick FIR available on record as Exbt. Ka-2, reveals that it was received in the office of Circle Officer of Police on 6.8.1982, as is apparent from an endorsement of the Circle Officer concerned on the Chick FIR of receiving the FIR i.e. on 6.8.1982. There is no endorsement of receiving the same by the C.J.M. concerned. However, P.W.4- S.H.O. Jai Chand has stated in his cross examination that the Chick FIR was sent to the Magistrate on 5.8.1982 through Constable, Bhairo Prasad at 11.15 A.M. In our considered Opinion when the FiR was received at the office of Circle Officer at 6.8.1982 for the purpose of forwarding it to the Chief Judicial Magistrate, there appears truthfulness in the version of the prosecution that the same had been dispatched on 5.8.1982 from the police station concerned through Circle Officer Police.
Hon'ble Apex Court in Anil Rai vs. State of Bihar, MANU/SC/1586/2001, held as under :-
"30. This provision is designed to keep the Magistrate informed of the investigation of such cognizable offence so as to be able to control the investigation and, if necessary, to give appropriate direction under Section 159 of the Code of Criminal Procedure. But where the F.I.R. is shown to have actually been recorded without delay and investigation started on the basis of the F.I.R., the delay in sending the copy of the report to the Magistrate cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable Pala Singh and Anr. v. State of Punjab MANU/SC/0199/1972 : AIR 1972 SC 2679. Extraordinary delay in sending the copy of the F.I.R. to the Magistrate can be a circumstance to provide a legitimate basis for suspecting that the first information report was recorded at much later day than the stated day affording sufficient time to the prosecution to introduce improvement and embellishment by setting up a distorted version of the occurrence. The delay contemplated under Section 157 of the Code of Criminal Procedure for doubting the authenticity of the F.I.R. is not every delay but only extraordinary and unexplained delay. However, in the absence of prejudice to the accused the omission by the police to submit the report does not vitiate the trial. This Court in Sarwan Singh and Ors. v. State of Punjab MANU/SC/0169/1976 : AIR 1976 SC 2304, held that delay in despatch of first information report by itself is not a circumstance which can throw out the prosecution's case in its entirety, particularly when it is found on facts that the prosecution had given a very cogent and reasonable explanation for the delay in despatch of the F.I.R."
Therefore keeping in view the above factual matrix and law the receiving of the Chick FIR in the office of the Chief Judicial Magistrate late, is not a circumstance which may adversely affect the prosecution.
56. Learned counsel for the appellants also submits that the deceased were of bad characters, as has been deposed by D.W.1 and they may be done to death by any one. This argument of learned counsel for the appellants need not to be deliberated in depth as being a bad character will not provide any presumption in favor of the accused persons that they have not committed the crime and only on the basis of hypothetical assumption a criminal case could not be decided. The law is well settled on this point that a criminal case is to be decided on the quality of the evidence placed before the court of law in the back ground of settled principle of admissibility and the probative value of the evidence, Therefore the case in hand is also to be decided on the quality of the evidence available on record keeping an eye on the Golden principle of proof beyond reasonable doubt.
57. It is overwhelmingly submitted by learned counsel for the appellants that the prosecution case is doubtful on following scores as all the witnesses of fact have deposed falsely and they have not witnessed any incident at all:-
(I) The presence of prosecution witnesses, P.W.2- Balwant and P.W. 3- Ram Chandra is highly doubtful as the statement of these witnesses were not recorded by the Investigating Officer on the day of occurrence while they were present in the village.
(II) The conduct of P.W. 1-Suresh Pal Singh was abnormal as he, after returning from Police Station, did not go to the spot where the dead bodies of his father and uncle were lying.
(III) P.W.2- Balwant, who allegedly was with the two deceased persons at the time of incident, has not received even a single scratch on his body and he as well as P.W.1- Suresh Pal Singh did not try to save the deceased persons.
(IV) There are material contradictions in the evidence of all three factual witnesses and their testimony could not be believed and accused persons are entitled to be given benefit of doubt.
58. We deal first point first. The statement of prosecution witnesses no.2 Balwant and P.W.3- Ram Chandra was not recorded on the day of the occurrence i.e. 05.08.1982. P.W.4- Jai Chand Singh who was the Investigating Officer of the case has stated in his evidence that he recorded the statement of P.W.6- S.I. Shyam Singh Parihar and P.W.2- Balwant and other witnesses on 6.8.1982 and of P.W.3- Ram Chandra on 11.8.1982.
59. We have carefully perused the statement of P.W.4- Jai Chand recorded before the trial court. He stated to have reached the village and at the spot at about 5.45 P.M. on the day of occurrence and prepared a site plan and also recorded the statement of P.W.1-Suresh Pal Singh on the same day at 6.00 P.M. In his cross examination, he stated that at the scene of crime apart from Suresh Pal Singh no other witness was present. He met Suresh Pal Singh, S.I. Shyam Singh Parihar, Constable Mulayam Singh and Constable Ram Krishna Pandey, at the spot. In paragraph 14 of his cross examination, he stated that he got the witnesses searched, but they were not available. However, he admitted that the word witness has not been written in the case diary. He repelled a suggestion of the appellants that till his arrival at the spot neither accused nor witnesses were known to him. We have carefully perused his statement and have found that no specific question has been put to this witness pertaining to the fact, as to why he did not record the statement of witnesses P.W.2- Balwant and P.W.3- Ram Chandra on the day of occurrence. Therefore, this witness has been denied a right to explain the delay occurred in recording the statement of P.W.2- Balwant and P.W. -3 Ram Chandra.
In Gangabhavani vs. Rayapati Venkat Reddy and Ors. (04.09.2013 - SC) : MANU/SC/0897/2013 held as under :-
"17. This Court in Laxmibai (Dead) Thr. L.Rs. and Anr. v. Bhagwantbuva (Dead) Thr. L.Rs. and Ors. MANU/SC/0072/2013 : AIR 2013 SC 1204 examined the effect of non-cross examination of witness on a particular fact/circumstance and held as under:
31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses.
P.W.2- Balwant on the other hand has stated in his evidence at paragraph 10 of his cross examination that he remained near the dead bodies for about half an hour and P.W.1- Suresh Pal Singh was not there. He again went to the spot after 10-15 minutes. Daroga Ji came at the spot at 1.30 P.M. and when Daroga Jai arrived there he, Ram Chandra, Natthu Kachi and Suresh Pal Singh were not there. He remained with Daroga Ji for 10-15 minutes.
It is to be recalled at this stage that at 1.30 P.M. Sub Inspector Shyam Singh Parihar (P.W.6) arrived at the spot, as Investigating Officer P.W.4- Jai Chand was not available at the Police Station at the time of registration of F.I.R. and therefore Shyam Singh Parihar (P.W.6) could not record the statement of Balwant and Ram chander. It is also evident that P.W.4- Jai Chand arrived in the village and at the spot at about 5.45 P.M. P.W.2 - Balwant in his statement has stated that Daroga Ji did not inquire from him on the day of occurrence and his statement was recorded the next day. It transpires from the above evidence of P.W.2- Balwant that a serious effort was not made by the Investigating Officer, P.W.4- Jai Chand to record his statement, even he was available in the village, in the evening of 05.08.1982. The laxity in investigation on the part of the Investigating Officer is also apparent, as he was not available at the Police Station when the FIR was lodged and even after lodging of the FIR he arrived at the village at about 5.45 P.M. and remained there till 7 P.M. and prepared the site plan at 7.00 P.M.. However, in absence of any specific question not put to P.W.4- Jai Chand (Investigating Officer) by the defence, it only appears that this is a case of carelessness on the part of Investigating Officer. It is to be understood that Investigating Officers know as to how the investigation should be done. They have all the means to conduct a proper and fair investigation but some time either knowingly or unknowingly, if any irregularity or even illegality is committed by them, the same could not form the basis to reject the otherwise truthful evidence of eye witnesses. Any illegality or irregularity committed by the investigating officer, wherein the informant or witnesses are not the privy, either bonafidely or deliberately, could not be the basis to reject the testimony of truthful eye witnesses. The law is well settled on this point that Criminal justice Administration could not be left on the mercy of an erring Investigating Officer.
In State of Karnataka vs. K. Yarappa Reddy, MANU/SC/0633/1999 held as under :-
"It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation.
It is well nigh settled that even if the investigation is illegal or even suspicious the rest of evidence must be scrutinized independently of the impact of it. Otherwise criminal trial will plummet to that level of the investigating officers ruling the roost. The Court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers.
Criminal justice should not he made the casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit investigating officer's suspicious role in the case."
In C. Muniappan v. State of T.N. [C. Muniappan v. State of T.N., (2010) 9 SCC 567 : (2010) 3 SCC (Cri) 1402] , Hon'ble Supreme Court explained the law on this point in the following manner:
"55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence de hors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation."
Coming to the statement of P.W.3- Ram Chandra, statement of whom was recorded on 11.08.1982, he has stated in paragraph 6 of his statement that he remained at his home for whole of the day on the day of incident and on the next day at about 8-9 A.M. he went to village Maholia and returned from there after 5-6 days. This part of the statement of this witness appears to be truthful in the facts and circumstances of the case as P.W.2- Balwant Singh has stated that Investigating Officer recorded his statement at about 10.00A.M. on the next day of incident. Therefore, there was no occasion for the Investigating Officer to met P.W.3- Ram Chandra on the next day as P.W.3- Ram Chandra had already left the village at about 8-9 A.M. on 6.8.1982 for village Maholia. Therefore non recording of the statement of P.W.2 Balwant and P.W.3- Ram Chandra on the day of occurrence is not fatal to the prosecution, while the delay has been adequately explained by the facts, circumstances and evidence available on record. Once reasonable explanation has been furnished about the delay occurred in recording the statement of witnesses by the Investigating Officer, the same is not fatal to the prosecution, specially when the delay is not on the part of either informant or his witnesses.
Hon'ble Apex Court has considered this aspect in the case of Bodhraj @ Bodha and others V. State of Jammu and Kashmir reported in MANU/SC/0723/2002: (2002) 8 SCC 45 and has observed in para 33 which is reproduced as under:--
"Another point which was urged was the alleged delayed examination of the witnesses. Here again, it was explained as to why there was delay. Important witnesses were examined immediately. Further statements were recorded subsequently. Reasons necessitating such examination were indicated. It was urged that the same was to rope in accused persons. This aspect has also been considered by the Trial Court and the High Court. It has been recorded that there was valid reason for the subsequent and/or delayed examination. Such conclusion has been arrived at after analyzing the explanation offered. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion."
Hon'ble Apex Court has again considered this aspect in the case of Sheo Shankar Singh V. State of Jharkhand and another reported in MANU/SC/0116/2011 in para 66 which is reproduced as under:--
"The legal position is well settled that mere delay in the examination of a particular witness does not, as a rule of universal application, render the prosecution case suspect. It depends upon circumstances of the case and the nature of the offence that is being investigated. It would also depend upon the availability of information by which the investigating officer could reach the witness and examine him. It would also depend upon the explanation, if any, which the investigating officer may offer for the delay. In a case where the investigating officer has reasons to believe that a particular witness is an eye-witness to the occurrence but he does not examine him without any possible explanation for any such omission, the delay may assume importance and require the Court to closely scrutinize and evaluate the version of the witness but in a case where the investigating officer had no such information about any particular individual being an eye-witness to the occurrence, mere delay in examining such a witness would not ipso facto render the testimony of the witness suspect or affect the prosecution version."
Hon'ble Apex Court has also considered this aspect in the case of Abuthagir and others V. State represented by Inspector of Police, Madurai reported in MANU/SC/0968/2009 : (2009) 17 SCC 208 and has observed in paras 28 and 29 which are reproduced as under:--
"28. Much emphasis has been led by learned Counsel for the appellants on the alleged delayed examination of the witnesses. It is well settled that delay in examination of the prosecution witnesses by the police during the course of investigation ipso facto may not be a ground to create a doubt regarding the veracity of the prosecution's case.
29. So far as the delay in recording a statement of the witnesses is concerned no question was put to the investigating officer specifically as to why there was delay in recording the statement. Unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for delayed examination is plausible and possible and the Court accepts the same as plausible there is no reason to interfere with the conclusion. (See Ranbir and Ors. v. State of Punjab reported in MANU/SC/0441/1973 : 1974] 1 SCR 102, Bodhraj @ Bodha and Ors. V. State of Jammu and Kashmir reported in MANU/SC/0723/2002 : 2002 CriLJ 4664, Banti @ Guddu v. V. State of M.P. reported in MANU/SC/0864/2003 : 2004 CriLJ 372 and State of U.P. v. Satish reported in MANU/SC/0090/2005 : (2005) 3 SCC 114."
61. Now we deal the second contention of learned counsel for the appellants pertaining to the alleged abnormal conduct of P.W.1- Suresh Pal Singh in not going to the place of occurrence after returning from the Police Station.
Perusal of the record shows that it is in para 16 of the statement of P.W.1- Suresh Pal Singh wherein he stated that he did not go to the spot from Police Station after lodging the FIR as "Uska ji Ghabra raha tha. Voh thak gaya tha isi liye ghar jakar pad gaya." The age of this witness at the time of recording of his statement before the court below was 18 years and at the time of incident, he might be of the age of about 17 years. A young lad of 17 years who has witnessed brutal murder of his father and real uncle, few hours ago, by no stretch of imagination would be in stable mental condition and he also fairly admitted this in his in-chief examination that his mind was not working properly.
In Appabhai and Ors. vs. State of Gujarat, MANU/SC/0028/1988 The Supreme Court held as under :-
"The Court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their, course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner.
In Rana Pratap and Ors. v. State of Haryana 1988 (3) S.C.C. 327. Chinnappa Reddy J. speaking for this Court succinctly set out what might be the behaviour of different persons witnessing the same incident. The learned Judge observed; (at p. 330).
Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.
11. These may be some of the reactions. There may be still more. Even a man of prowess may become pusillanimous by witnessing a serious crime. In this case, the courts below, in our opinion, have taken into consideration of all those respects and rightly did not insist upon the evidence from other independent witnesses. The prosecution case cannot be doubted or discarded for not examining strangers at the bus stand who might have also witnessed the crime. We, therefore, reject the first contention urged for the appellants."
In State of Uttar Pradesh vs. Devendra Singh, MANU/SC/0343/2004 while discussing the issue of behavior of witness commented as under :-
"Human behavior varies from person to person. Different people behave and react differently in different situations. Human behavior depends upon the facts and circumstances of each given case. How a person would react and behave in a particular situation can never be predicted. Every person who witnesses a serious crime reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Some may remain tight-lipped overawed either on account of the antecedents of the assailant or threats given by him. Each one reacts in his special way even in similar circumstances, leave alone, the varying nature depending upon variety of circumstances. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way. (See Rana Partap and Ors. v. State of Haryana MANU/SC/0137/1983 : 1983CriLJ1272 )."
Therefore, keeping in view the tender age of Suresh Pal Singh at the time of incident and the fact that his father and real uncle were done to death in front of his eyes only few hours ago, the circumstance of him going to his home while returning from the Police Station and not going to the spot is not of much significance. However, it is established and proved that his statement was recorded by the Investigating Officer at the spot on the same day at 6.00 P.M.
62. The third contention of learned counsel for the appellants is with regard to the fact that P.W.2- Balwant Singh did not sustain any injury in the incident while he was with the deceased persons and the enmity of accused persons with him was of the same degree as was with two deceased persons. According to him this belies the whole evidence of P.W.2- Balwant Singh as highly interested and not acceptable.
At the very outset, we would like to observe that what was in the mind of accused persons at the time of commission of crime can only be known to the perpetrators of crime and the law is well settled in this respect that the prosecution is not obliged to prove those facts which prosecution either could not prove or which are not in the knowledge of the prosecution. Therefore what was going on in the mind of accused persons at the time of committing crime can only be disclosed by accused persons themselves. Therefore why the accused persons targeted only Natthu Singh and Sobaran Singh could only be disclosed by them. However, P.W.2- Balwant Singh in his statement at paragraph 5 has stated that the accused persons atonce emerged from behind the bushes and were about 4-5 paces away from them. He further stated that they (he, Natthu Singh and Sobaran Singh) were together. He ran forward and chased by accused Narvada for 10-15 paces and meanwhile 2-3 village girls came in between them who were carrying water nd also that no gun shot was fired at him and he moved forward about 25-30 paces and thereafter accused persons fired at Natthu Singh. Therefore it transpires from the evidence of this witness that accused persons, specifically Narvada chased him but due to the emerging of 2-3 village girls in between them, he could not fire at him and in the meantime, he went out of range. The statement of this witness i.e. P.W.2- Balwant Singh is further corroborated by P.W.1- Suresh Pal Singh when he, in his statement at page 4 paragraph 15 stated that at the time of incident, he was 40 paces away from the place of incident and Balwant was 20-25 paces away from him. P.W.3- Ram Chandra in his chief examination has also stated that he saw the incident from the North side of Natthu Singh and Sobaran Singh and P.W.1- Suresh Pal Singh and P.W.2- Balwant Singh were towards the South of them. This statement of this witness further corroborates the testimony of P.W.2- Balwant Singh and Suresh Pal Singh that Suresh Pal Singh and Balwant Singh were on the same side of the spot and Balwant Singh was 20-25 paces away from the place of occurrence. Therefore the evidence on record discloses that Narvada could not fire at Balwant Singh due to the coming of some village girls in between them who were carrying water and till then not a single fire was fired and all the gun shots were fired by the accused persons there after. In view of above if no injury has been caused to P.W.2- Balwant Singh, in the incident, that seems to be of not much significance and in the facts and circumstances of the case P.W.2- Balwant Singh appears to be a truthful witness.
64. The fourth argument, overwhelmingly submitted by learned counsel for the appellants is that there are material contradictions in the testimony of all three eye witnesses and their testimony could not be believed. It is stated by him that there is material contradictions in the narration of the incident by P.W.1- Suresh Pal Singh and P.W.2- Balwant Singh and P.W.3- Ram Chandra and actually no body has seen the occurrence. P.W.1- Suresh Pal Singh was not in a position to witness the alleged incident as there was no occasion for him to reach the spot and the testimony of Balwant Singh and Ram Chandra could not be believed due to inherent weakness.
We are conscious that while appreciating the evidence on record with reference to the contentions raised, this court is required to exercise due diligence though the standard of such exercise would be of an exercise by prudent person. The Court must bear in mind the set up and the circumstances in which the crime has been committed, the quality of evidence, nature and temperament of the witnesses, the level of understanding and power of perception and examination of individual witness and probability in ordinary course of nature about the act complained of as might have been witnessed by the witnesses. The endeavor must be to find out the truth from the evidence on record. At the same time, it must not be forgotten that there cannot be a prosecution case with a cast iron perfection in all respects and reason being that the perfection to that degree in ordinary course of human life is an impossibility. Nevertheless, obligation lies upon this Court to analyze, sift and assess the evidence on record, with reference to trustworthiness and truthfulness of the prosecution case, by a process of dispassionate judicial scrutiny adopting an objective and reasonable appreciation of the evidence without being obsessed by an air of total suspicion about the case of the prosecution. What is to be insisted upon is the proof beyond reasonable doubt and necessity of a ring of truth around the testimony of witnesses. The contradictions, infirmities pointed out in prosecution case must be assessed at the yardsticks of probabilities of the existence of a fact or not. Unless, infirmities and contradictions are of such a nature as to undermine the paucity of the evidence and found to be tainted to the core of the prosecution case, over emphasis may not be applied to such contradictions and infirmities. To judge the credibility of the evidence of witness, one has to look to his entire evidence, and if any discrepancies found in the ocular account of the witnesses not affecting the root, the witness may not be labeled as not credit worthy. At the same time, seeking rule of corroboration, mathematical niceties may not be expected. The evidence of the witnesses must be read as a whole and once impression is formed that the evidence contains ring of truth, rejecting whole of the evidence of such a witness would amount to doing injustice to a reliable and honest witness. Even an honest and truthful witnesses may differ with regard to the facts not related to the main cause of prosecution case, and their evidence therefore must be appreciated keeping in mind the power of observation, retention and reproduction of the same by the witness to be judged by human standards. The attending circumstances of the case and the probabilities must be judged keeping in mind the human conduct of a normal prudent person and occurring of the events in ordinary course of nature.
In Appabhai and Ors. vs. State of Gujarat, MANU/SC/0028/1988 it was observed that :-
"A witness though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him -perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses."
In Gangabhavani vs. Rayapati Venkat Reddy and Ors. Reported in MANU/SC/0897/2013 held as under:-
"In State of U.P. v. Naresh MANU/SC/0228/2011 : (2011) 4 SCC 324, this Court after considering a large number of its earlier judgments held: In all criminal cases, normal 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. 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. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
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.
A similar view has been reiterated by this Court in Tehsildar Singh and Anr. v. State of U.P. MANU/SC/0053/1959 : AIR 1959 SC 1012; Pudhu Raja and Anr. v. State, Rep. by Inspector of Police MANU/SC/0761/2012 : JT 2012 (9) SC 252; and Lal Bahadur v. State (NCT of Delhi) MANU/SC/0333/2013 : (2013) 4 SCC 557).
10. Thus, it is evident that in case there are minor contradictions in the depositions of the witnesses the same are bound to be ignored as the same cannot be dubbed as improvements and it is likely to be so as the statement in the court is recorded after an inordinate delay. In case the contradictions are so material that the same go to the root of the case, materially affect the trial or core of the prosecution case, the court has to form its opinion about the credibility of the witnesses and find out as to whether their depositions inspire confidence."
Honble Apex Court long back in the matter of Bharwada Bhoginbhai Hirjibhai v State of Gujarat as reported in AIR 1983, 753, MANU/SC/0090/1983 observed and settled following principles for appreciation of evidence without entering into re-appraisal or re-appreciation of the evidence:
(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him-perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."
We have carefully perused the evidence of all three witnesses of fact namely P.W.1- Suresh Pal Singh, P.W.2- Balwant Singh and P.W.3- Ram Chandra and have found that there is no material contradictions in their testimony which may shake the trust of this Court in them. No doubt deceased Natthu Singh and Sobaran Singh were inimical with Narvada and others, but enmity is a double aged weapon and this may also provide an opportunity to accused persons to commit the crime as both the deceased persons were charged with the murder of the father of one of the accused Narvada and all other co-accused persons are either related to or are of the party of accused Narvada. So there was strong motive available to accused persons also, to commit the crime. Otherwise also when a criminal case is based on direct eye witnesses account, the same must be decided on the basis of the quality and probative value of the evidence of eye witnesses and other witnesses of prosecution.
Perusal of record reveals that the facts pertaining to the incident as narrated in the First Information Report are very clear and it is stated that on the basis of old enmity accused persons Narvada, Sukkhi and Mashaley ( since deceased), armed with guns and Gajraj and Jaswant armed with lathis emerged out from behind the bushes and Kahjuria and assaulted both the deceased persons i.e. Natthu Singh and Sobaran Singh on 5.8.1982 at about 8-9 A.M. P.W.1- Suresh Pal Singh arrived at the spot after hearing the alarm made by PW-2 Balwant Singh as he was on the way to see as to why his father (Natthu Singh) and uncle (Sobaran Singh) have not returned back from their fields. The fact that FIR is silent on the point that both deceased persons along with Balwant Singh went to look-after their field is of no consequence. The law is well settled that First Information Report is not an encyclopedia of an incident. P.W.2- Balwant Singh at the time of commission of crime was with the deceased persons as he accompanied them, when he was purchasing ''Bidi' from the shop and at the time of incident was returning with them. P.W.3- Ram Chandra was grazing his cattle a vew paces away from the spot. Therefore all three eye witnesses P.W.1- Suresh Pal Singh, P.W.2- Balwant Singh and P.W.3- Ram Chandra are natural witnesses.
67. The evidence of all three above eye witnesses is consistent on the point that assault from guns have been made by Narvada, Mashaley and Sukkhi and these accused persons fired from their guns and also that Jaswant and Gajraj assaulted the deceased persons with ''Lathis'. The fact that P.W.1- Suresh Pal Singh in his statement has stated the time of incident as 8 A.M. is also of no importance as he in his cross examination at para 14 has clarified that in the FIR time of occurrence was written as 9 A.M., on the basis of guess work and actually the incident occurred in between 8 to 9 A.M. He further stated that nobody was having a watch with him and also that he was under duress due to the incident and his mind was not working properly as the bodies of his father and real uncle were lying in the village.The evidence of this witness is reliable and truthful and minor contradictions appearing in his testimony is natural.
68. In depth scrutiny of evidence of all three eye witnesses would reveal that there is no material contradictions with regard to the genesis of incident and the testimony of all the factual witnesses is corroborating each other. No doubt there are insignificant discrepancies in their statements about, as to who amongst the accused persons fired first or who amongst them fired upon which deceased person. But, as said earlier, these are all minor discrepancies, not going to the root of the matter and are bound to occur as the statement of eye witness was recorded in the Trial Court about 9 months after the incident. No body is expected to testify in the court and reproduced the incident video-graphically, every person perceive any incident on his own perception and give his own account of incident and due to this natural phenomenon minor discrepancies are bound to occur. Therefore the minor meaningless discrepancies occurring in the statement of eye witness is of no consequence and is not in a position to impeach the otherwise trustworthy evidence of the eye witnesses. The place of occurrence has been amply proved and there is no doubt about that. Multiple fire arm injuries and lacerated wound mostly bone deep have been found on the bodies of both the deceased persons at the time of postmortem and there is no contradiction in the ocular and medical evidence. The medical evidence available on record fully corroborates the version of the prosecution as contained in the FIR and also in the testimony of eye witnesses. The first Information Report is prompt and is not either ante-dated or ante- timed. The time of death of both deceased persons, namely, Natthu Singh and Sobaran Singh is established between 8 A.M. to 9 A.M., as per the statement of eye witnesses as well as by the medical evidence. Presence of faecal matter either in the small or big intestine of the deceased persons is not a circumstance strong enough to uproot the otherwise truthful and reliable evidence of three eye witnesses, in the backdrop that both the parties i.e. informant and accused persons are having high pitched enmity against each other. Keeping in view the strained relations of parties, one cannot expect that independent witnesses will come forward and depose against the accused persons and will earn bad blood for them.
In Appabhai and Ors. vs. State of Gujarat, MANU/SC/0028/1988 Hon'ble Supreme Court held as under :-
"Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties.
The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused."
So non production of other witnesses by the prosecution is also not a circumstance which may adversely affect it. No doubt there is some negligence on the part of the Investigating Officer PW-4 Jai Chand as he has not recorded the statement of P.W.2- Balwant Singh and P.W.3- Ram Chandra on 5.8.1982 as both these witnesses were available on that day. But keeping in view the reasonable explanation available on record pertaining to the fact that there is no laxity or carelessness on the part of these witnesses in recording their statements, the prosecution case could not be doubted and the otherwise truthful evidence of the eye witnesses could not be disbelieved on the basis of any mistake, knowingly or unknowingly committed by the Investigation Officer. After scrutinizing the evidence of all three eye witnesses, namely, P.W.1- Suresh Pal Singh, P.W.2- Balwant Singh and P.W.3- Ram Chandra, we do not have any hesitation in branding and categorizing their testimonies as truthful, reliable and acceptable in the facts and circumstances of the case. The manner wherein the assault has been made clearly proves that all appellants formed an unlawful assembly and object of which was to murder deceased persons and they in furtherance of the common object of the assembly murdered Nathu Singh and Sobran Singh.
69. Having regard to our above findings we do not find any merit in this appeal and in our considered opinion the same is liable to be dismissed.
70. Appellant Mashaley had died and appeal with regard to him has already been abated vide order dated 1.12.2015. Appellant Sukkhi has also died during pendency of the appeal and appeal was also abated with regard to him vide order dated 1.7.2019.
71 The appeal filed by appellants Narvada, Jaswant and Gajraj against the judgment and order dated 7.10.1983, passed by Vth Additional Sessions Judge, Hardoi, is dismissed and impugned judgment and order passed by the trial court is affirmed. Appellants, namely, Narvada, Jaswant and Gajraj are on bail. Their bail bonds are cancelled and they are directed to surrender before the Chief Judicial Magistrate, Hardoi within 15 days from today to serve out the sentence as awarded by the trial court.
72. A copy of this judgment along with lower court record be immediately sent to the trial court for compliance and in case the appellants do not surrender before the court, the trial court will secure their presence in the prison to serve out the remaining sentence as awarded by the trial court.
(Mohd. Faiz Alam Khan) (Ved Prakash Vaish)
Order Date :- 01.11.2019
Muk