Allahabad High Court
Ran Vijai Singh vs State Of U.P. on 22 April, 2020
Equivalent citations: AIRONLINE 2020 ALL 1417
Bench: Sudhir Agarwal, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 05.02.2020 (In Court No. 34) Delivered on 22.04.2020 (In Chamber) In Chamber Case :- CRIMINAL APPEAL No. - 1496 of 1984 Appellant :- Ran Vijai Singh Respondent :- State of U.P. Counsel for Appellant :- Rajeev Kumar Singh Parmar,Anil Kumar Jaiswal,Atul Kumar Shahi,Rakesh Kumar Rathore,Shyam Singh Sengar Counsel for Respondent :- A.G.A., Udit Chandra, Amar Singh Kashyap,Bachcha Lal Yadav Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra,J.
(Delivered by - Hon'ble Sudhir Agarwal, J.)
1. This Criminal Appeal under Section 374(2) of Cr.P.C. has been preferred by accused-appellant Ran Vijay Singh against judgment and order dated 27.04.1984 passed by Sri Harish Chandra Saxena, Sessions Judge, Mainpuri in Sessions Trial No. 511 of 1982, convicting and sentencing appellant to undergo life imprisonment under Section 302 IPC.
2. Factual matrix of the case as emerging from First Information Report (hereinafter referred to as 'FIR') as well as evidence available on record may be stated as under:
3. A written report Ext. Ka-1 was presented at police station Kotwali, District Mainpuri by P.W.1 (Informant) Shiv Manal Singh, stating that on 11.09.1982 'SHRADH' ceremony of Informant's father Raghubir was scheduled to be held. In that connection Informant's brother, an official in Mathura Police Office, had also come. On 10.09.1982, at about 7.00 pm, accused-appellant came in drunken state and started hurling abuses. When Informant's brother objected to it, an altercation took place and co-accused Ram Pal Singh threatened to settle the score. On the fateful day i.e. 11.09.1982, when Informant along with his brother Shiv Raj Singh, Shiv Narain Singh, Shiv Pratap Singh and sister Meena Kumari, were engaged in ceremonial work pertaining to Shradh ceremony of their father. At about 9.00 am, Ran Vijay Singh (appellant herein) and co-accused Ram Pal Singh, reached there, armed with firearms. Ram Pal Singh held country made pistol whereas Ran Vijay Singh had licensed DBBL Gun. They started abusing Shiv Raj Singh, whereupon Shiv Raj Singh came out of his house and protested against their conduct. In the meantime, Informant, his other brothers, Shiv Narain Singh, Shiv Pratap Singh and sister Meena Kumari, his brother's wife P.W.2 Ramesh Kumari, also came out of the house and with folded hands requested appellant and co-accused not to misbehave and hurl abuses. In the meantime, P.W.3 Rajendra Singh son of Pancham Singh, Rajendra Singh son of Natthu Singh and several other persons of the vicinity reached there. Wife of Ram Pal Singh also reached there and tried to drag her husband Ram Pal Singh towards their house, but Ram Pal Singh pushed her and she fell down on the platform (Chabutara). Ran Vijay Singh, then went on the roof and suddenly opened fire, which hit Informants brother Shiv Raj Singh, who fell down on the ground and co-accused Ran Pal Singh also opened fire from his country made pistol, which hit at the hands of Informant and also injured his sister Meena Kumari, who was standing beside him. On being exhorted by witnesses assembled there, accused persons went inside their house. Informant and other persons took Shiv Raj Singh in injured condition to District Hospital, Mainpuri in a Jeep, where he died at 10.00 am. FIR also states that Informant and his sister Meena Kumari had also sustained injuries of pellets.
4. Before death, Shiv Raj Singh was also examined by Medical Officer, at District Hospital, Mainpuri on 11.9.1982 at about 9.20 A.M. He prepared injury report Ext. Ka-3 and found following injuries on the person of Shiv Raj Singh :-
"1. Multiple G.S.W. of entrance in an area of 38 cm x18 cm over front inner and outer surfaces of left upper limb extending from top of shoulder to upper ¾ of left forearm. Size ranging from 0.2 cm x 0.2 cm x tissue deep to 0.2 cm x 0.3 cm x tissue deep. Margins are lacerated and inverted. No bleeding, tattooing and scorching present. Direction could not be ascertained. Bleeding fresh present.
2. Multiple G.S.W. of entrance in an area of 31 cm x 18 cm over front and outer surface of left side chest and abdomen extending from axilla to upper border of hip. Size ranging from 0.2 cm x 0.2 cm x not probed to 0.2 cm x 0.3 cm x not probed. Rest same as described in injury No.1.
5. The injuries of Shiv Mangal Singh, were also examined by the same Doctor on 11.09.1982 at 10.15 A.M. and he found following injuries on his person :-
"1.G.S.W. of entrance four in number in an area of 8 cm x 4 cm over back of lower part of right forearm and wrist joint. Size ranging from 0.2 cm x 0.2 cm x tissue deep to 0.2 cm x 0.2 cm x tissue deep. Margins are lacerated and inverted. No bleeding, tattooing and scorching.
6. Injuries of Parwati was also examined by the same Doctor on 11.09.1982 at 11.10 A.M. and he found following injuries on her person:
"1.Lacerated wound 3 cm x1.5cm x scalp deep over left side skull 10 cm above from left ear. Fresh bleeding present.
Complain of pain over right hip but no mark of external injury seen.
7. On the basis of written report Ext. Ka-1, P.W.8 Head Constable Moharrir Onkar Nath Bajpai, prepared Check FIR Ext. Ka-11 and made corresponding entries in the G.D., a copy of which is on record as Ext. Ka-12. He also made entry in the G.D. regarding arrest of co-accused Ram Pal Singh and a copy of that entry is Ext. Ka-13 on record. It also appears that a report Ext. Ka-14 was also lodged at about 11.00 a.m. on the same day by Parwati Devi wife of co-accused Ram Pal Singh. Chik FIR and G.D. entry in that respect are Ext. Ka-15 and Ext. Ka-16 on record.
8. After lodging of report, investigation of case was entrusted to P.W.7 Sub Inspector Omveer Singh of Police Station Kotwali, District Mainpuri, who sent P.W.9 Sub Inspector S.N. Srivastava at the place of occurrence to prepare inquest. P.W.7 himself proceeded thereafter towards place of occurrence for arresting accused persons. On the basis of information received from Informer, he succeeded in arresting co-accused Ram Pal Singh along with his DBBL Gun. He sealed the Gun, Material Ext.1 and recovery memo Ext. Ka-6, was prepared by Inspector Y.P. Singh in presence of P.W.7. Thereafter P.W.7 proceeded to place of incident, recorded statement of Kumari Meena, inspected the site, prepared site plan Ext. Ka-7; collected blood stained and plain earth and prepared recovery memo Ext. Ka-8 in respect thereof. Search of house of co-accused Ram Pal Singh was conducted for arresting accused-appellant Ran Vijay Singh but he was not to be found. Search memo in that respect is Ext. Ka-9.
9. P.W.9 Sub Inspector S.N. Srivastava, who had been deputed by Investigating Officer (hereinafter referred to as "I.O.") to go to District Hospital, Mainpuri. He reached there, sealed the dead body of deceased Shiv Raj Singh Chauhan, prepared inquest Ext. Ka-17 and after necessary documentation Photo Lash, request letter to CMO for postmortem, Challan Lash, Ext.18, Ext. Ka-19 and Ext. Ka-20. He sent dead body to District Hospital, Mainpuri for postmortem through constable Ram Jee Lal and P.W.5 Siya Ram.
10. Autopsy on the dead body of deceased was conducted by P.W.4. Dr. A.K. Upadhyay, Medical Officer, District Hospital, Mainpuri on 11.09.1982 at 4.05 pm. According to Autopsy Surgeon, deceased was of average body built; rigor mortis was present in both extremities and no sign of decomposition was present. In the opinion of Doctor, deceased was aged about 25 years and about 1/4 day had passed since his death. P.W.4 found following ante mortem injuries on the body of deceased.
"(1) Multiple firearm wound of entry, in an area of 38 cm x 18 cm x muscle deep on the front and outer aspect of left arm and left forearm and top of the left shoulder size of big wound was 8.2 cm x 0.2 cm x muscle deep and the size of small was 0.2 x muscle deep and the size of small was 0.2 cm x 0.2 cm x muscle deep. Margins were inverted. There was no blackening or scorching. Direction was from above downwards and oblique.
(2) Multiple firearm wound of entry in an area of 31 cm x 18 cm x cavity deep over front and outer aspect of left side chest and abdomen, extending from left axilla above and left iliac crest below and left anterior axillary line in the front and left posterior axilllary line behind. The sizes were 0.2 cm x 8.2 cm. Margins were inverted. No blackening or scorching was there. Direction was from above downwards and obliquely."
11. On internal examination, left side pleura was found lacerated; left lung was punctured; pericardium lacerated; heart was punctured and empty, which weighed 4.5 ounce, thoracic condition blood was coming from abdominal wall. Spleen was lacerated and weighed 4 oz, left kidney lacerated.
12. In the opinion of Doctor, death was caused due to shock and heamorrhage on account of ante mortem injuries. Doctor prepared postmortem report Ext. Ka-2.
13. P.W.7 Omveer Singh, I.O. had sent the blood stained and simple soil to Agra for chemical analysis. He had not sent material exhibit DBBL Gun for ballistic report. After conclusion of investigation, P.W.7 submitted charge-sheet Ext. Ka-10 in the Court of Chief Judicial Magistrate, Mainpuri (hereinafter referred to as "CJM").
14. Cognizance of the offence under Sections 302/307 was taken by C.J.M., Mainpuri on 20.10.1982. The offence being triable by Court of Sessions, the case was transferred to Sessions Court vide order dated 12.11.1982 passed by C.J.M. Mainpuri. On 18.11.1982 record was received in the Court of Sessions Judge, Mainpuri, which was regisered as Sessions Trial No. 511 of 1982 (State Vs. Ram Pal Singh and others), and trial commenced against appellant and co-accused Ram Pal Singh.
15. The Sessions Judge framed charges against accused appellant Ran Vijay Singh by order dated 25.11.1982, which reads as under:
"I, R.C. Verma, Sessions Judge, Mainpuri, hereby charge you Ran Vijai Singh, as follows:
That you, along with one other, on 11.09.1982, at about 9 A.M., at the house of Sheo Mangal Singh, situate in village Kharpari, P.S. Kotwali, Mainpuri, district Mainpuri, committed murder by intentionally causing the death of Shiv Raj Singh, and thereby committed an offence punishable under Section 302 Indian Penal Code, and within the cognizance of this Court of Session;
Secondly, that you, along with one another, on the aforesaid date, time and place , did an act, in furtherance of your common intention, to wit, made murderous assault with such intention and under such circumstances that if by that act you had caused the death of Shiv Mangal Singh, you would have been guilty of murder and that you thereby caused hurt to the said Sheo Mangal Singh, and thereby committed an offence punishable under Section 307 read with Section 34 of the Indian Penal Code, and within the cognizance of this Court of Session.
AND I hereby direct that you be tied by this Court on the said charges.
Charges read over and explained to the accused in Hindi, to which he pleads not guilty and claims to be tried."
16. Accused-appellant denied charges, pleaded not guilty and claimed trial.
17. In support of its case, prosecution examined in all ten witnesses. Out of whom, P.W.1, Informant Shiv Mangal Singh, P.W.2, Smt. Ramesh Kumar, wife of deceased, P.W.3, Rajendra Singh son of Natthu Singh, are witnesses of fact, who have deposed material facts about the occurrence. Rest are formal witnesses of police and medical department. P.W.4, Dr. A.K. Upadhyay, had conducted autopsy on the dead body of deceased and has proved postmortem report Ext. Ka-2. P.W.5, constable Siya Ram has deposed that he along with constable Ram Jee Lal had taken the dead body in sealed condition to the District Hospital, Mainpuri for postmortem. P.W.6, Dr. M.L. Gupta, has proved injury reports Ext. Ka-3 in respect of Rajendra Singh and Ext. Ka-4 in respect of Shiv Mangal Singh. He has also proved injury report Ext. Ka-5, prepared by him in respect of Parwati Devi wife of Ram Pal Singh. P.W.7, Omveer Singh Investigating Officer has proved the recovery memo in respect of DBBL Gun Material Ext.1 and recovery memo M. Ext-6. He has also proved recovery memos Ext. Ka-8 in respect of blood stained and plain earth; search memo Ext. Ka-9 regarding search of house of co-accused Ram Pal Singh and charge-sheet Ext. Ka-10. P.W.8, Onkar Nath Bajpai has proved Check report Ext. Ka-11 prepared on the basis of written report Ext. Ka-1; copy of G.D. entry Ext. Ka-12; copy of G.D. entry Ext. Ka-13 in respect of arrest of co-accused Ram Pal Singh; written report Ext. Ka-14 submitted to the police by Parwati Devi wife of co-accused Ram Pal Singh; its Check report Ext. Ka-15 and corresponding relevant entry in G.D., copy whereof is Ext. Ka-16. P.W.9, S.I. S.N. Srivastava, who on instruction of P.W.7, had gone to Civil Hospital, Mainpuri and prepared inquest Ext. Ka-17 has proved the same as also Photo Lash, letter to CMO for postmortem and Challan Lash, Ext. Ka-18 to 20, respectively. P.W. 10, Constable Maya Ram had taken the sample of clothes of deceased and that of blood stained and plain earth to Agra for chemical examination. He has proved copy of relevant G.D. entry Ext. Ka-29 in that respect.
18. After conclusion of prosecution evidence, accused-appellant Ran Vijay Singh was examined under Section 313 Cr.P.C. Appellant has denied prosecution version and deposed that entire prosecution story is false. He pleaded ignorance about the investigation and has stated that witnesses are deposing against him on account of enmity. He has further stated that on 11.09.1982 at about 6.30 A.M. to 6.45 A.M. he was studying in his room. Hearing the noise of shriek, he went out and saw Shiv Raj Singh armed with pistol, Shiv Mangal Singh and Shiv Ratan armed with lathies, they were assaulting his parents, as a result of assault appellant's mother fell down. Thereafter Shiv Ratan assaulted on the head of father of appellant and Shiv Raj Singh put cartridges into pistol saying that he would settle the score, when he witnessed all these, he fired from his father's gun in self defence, which hit Shiv Raj Singh and Shiv Mangal Singh.
19. Accused-appellant in his self defence, has also examined D.W.1, Dr. Surendra Singh, D.W.2, Ramesh Chandra Verma, D.W.4, Atar Singh, Sanrakshak District Information Centre, Mainpuri and D.W.3, Ram Pal Singh (co-accused).
20. After hearing learned counsel for parties and perusing material on record, learned Sessions Judge, Mainpuri, vide judgment and order dated 27.04.1984 has convicted and sentenced accused-appellant, as above.
21. Trial Court has recorded following findings to hold appellant guilty of committing the alleged offence :-
(i) Death of Shiv Raj Singh at the place, time, date and manner is broadly not disputed and it is proved that he died of gunshot injuries fired by appellant.
(ii) Postmortem report fortifies the death of Shiv Raj Singh due to ante-mortem injuries caused due to multiple gun-shots.
(iii) P.W.1 Shiv Mangal Singh, Informant, was also injured in same incident due to fire opened by co-accused Ram Pal Singh.
(iv) There was old enmity and an incident occurred on 10.09.1982 also hence, motive was duly proved, though in a case of ocular evidence, motive loses its relevance, but in this case, motive was well-proved by witnesses.
(v) P.W.2 Smt. Ramesh Kumari, wife of deceased, is an eye-witness and her evidence could not be shaken in cross-examination by defence, hence she has proved complicity of appellant regarding murder of Shiv Raj Singh.
(vi) P.W.3 Rajendra Singh is not an eye-witness to murder but he has his house just at a distance of two houses from place of incident and thus, it is evident that he heard noise etc. during altercation, exchange of abuses. It was corroborating evidence and nothing otherwise could be extracted in the cross-examination of their witnesses so as to discredit him.
(vii) The incident stood admitted that appellant opened fire, causing death of Shiv Raj Singh, since plea of self-defence was taken, but story of self-defence could not be proved by any reliable evidence.
(viii) Defence plea that F.I.R. was ante-timed has no substance inasmuch as incident took place at 09.00 a.m. and F.I.R. was lodged at 10.30 a.m., distance of police station is about 2 and half kilometres and injury reports were prepared at 10.00 a.m. Mere fact that FIR was lodged without any delay is not fatal to rob of its corroborative value.
(ix) The eye-witnesses are mentioned in F.I.R. and they have proved the case in trial.
(x) Defence evidence that they also lodged a cross F.I.R. has not been found correct inasmuch as no such FIR was produced. Except for copy of letters, which were send to different persons under certificate of positing i.e. Ex.Ka.14, nothing else was filed. Trial Court found that it appears that above letters were prepared subsequently for defence only.
(xi) The story stated in report Ex.Ka.14 is not natural as no injury could be shown to have caused to defence side due to alleged attack by deceased and injured Informant and other persons accompanied them when they allegedly opened fire and this all belies the alleged report of accused persons. They relied on injuries sustained by Smt. Parwati Devi, but it was found to have been sustained while she fell on platform (chabutara) and not by any weapon.
(xii) The accused Ram Pal's injury report shows that he was examined after two days of incident. His own witness D.W.2 Ramesh Chandra Verma did not say in his evidence that he saw any injury on the person of co-accused Ram Pal Singh. Doctor also opined that injuries could be self-inflicted. All were simple injuries and therefore, this report has been been disbelieved.
22. Thus feeling aggrieved by the aforesaid judgment of conviction and sentence, accused-appellant has filed present Criminal Appeal before this Court under Section 374(2) Cr.P.C.
23. Heard Sri Atul Kumar Shahi, learned counsel for appellant, Sri Udit Chandra, learned Additional Government Advocate representing opposite party no.1 and Sri Amar Singh Kashyap, learned counsel for opposite party no.2.
24. Learned counsel for appellant could not dispute date, time and place of incident and manner in which deceased Shiv Raj Singh died i.e. due to firearm injuries. These aspects were neither disputed nor there is any material to create any doubt over the same.
25. Thus the only question in this case which has to be examined is "whether it was a planned murder or in self-defence, incident has taken place or there was an altercation between the two and due to sudden and momentary passion firing took place causing death of Shiv Raj Singh".
26. In this regard, we find that Informant, Shiv Mangal Singh is himself an injured witness, who sustained injuries in the same incident when co-accused Ram Pal Singh opened fire upon him and therefore, his evidence is of utmost importance. It cannot be brushed aside lightly. It is well-settled that evidence of an eye-witness who himself has sustained injuries in the same incident has to be given due weight.
27. Testimony of an injured witness comes with inbuilt assurance of his presence at the place of crime. Such a person is not expected to spare actual assailant(s) but to implicate someone else falsely since the person who himself has sustained injuries being attacked by someone, in normal course, would make all out efforts to get real assailants punished. To discredit such an injured witness, convincing evidence is required.
28. In Chandrasekar and others Vs. State (2017) 13 SCC 585 Court said:
"Criminal jurisprudence attaches great weightage to the evidence of a person injured in the same occurrence as it presumes that he was speaking the truth unless shown otherwise." (emphasis added)
29. In Brahm Swaroop V. State of U.P (2011) 6 SCC 288 Court said:
"Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with an in-built guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone." (emphasis added)
30. The above observation has been quoted and followed in State of U.P. Vs. Ram Kumar JT 2017 (7) SC 466.
31. P.W.1 Shiv Mangal Singh has categorically stated that deceased Shiv Raj Singh, his elder brother, was Stenographer in office of S.P. Mathura. On 09.09.1982, he had come to the village since he had some official work and also on account of his father's Shrad. On 10.09.1982, in the evening at 07.00 p.m., Ram Pal Singh came at the residence of deceased. He abused Shiv Raj Singh, who tried to stop him from abusing. Thereupon, Ram Pal Singh went away, stating that he will settle score later on. In the morning, at around 09.00 a.m. on 11.09.1982, Ram Pal Singh and Ran Vijay Singh, both came at the residence of Informant and Shiv Raj Singh. They (Ram Pal Singh and Ran Vijay Singh) possessed firearm inasmuch as Ram Pal Singh had a country-made pistol and appellant Ran Vijay Singh had a gun in his hand which belonged to his father. Both started abusing Shiv Raj Singh and challenged him to come outside. Thereupon, Shiv Raj Singh, Informant himself, his other brothers Shiv Narayan Singh, Shiv Pratap Singh, bhabhi, Smt. Ramesh Kumari (wife of Shiv Raj Singh) and Sister, Smt. Meena Kumari came outside together. They all, with folded hands, requested accused Ram Pal Singh and Ran Vijay Singh not to do what they were doing, but they did not accede to their request. In the meantime, Rajendra Singh, son of Pancham Singh and Rajendra Singh son of Natthu Singh also arrived on the spot. Wife of Ram Pal Singh also came. Ram Pal Singh caught hand of Shiv Raj Singh and said that he will see him. Thereafter, Rampal Singh's wife caught his hand and attempted to take him to her residence, but she was pushed by Ram Pal Singh, whereupon she fell down and sustained some injuries on her head. At that time, Ran Vijay Singh, appellant, went upstairs and reached the roof of the house of Rajendra Singh son of Pancham Singh and therefrom, opened fire, which hit Shiv Raj Singh, who fell down in the lane. Ram Pal Singh also opened fire from country-made pistol, which hit Informant's right hand. Then all the persons present challenged the accused, who fled away and went in hide at their residence. Shiv Raj Singh was brought, in injured condition, to Mainpuri Hospital in jeep, where he died at about 10.00 a.m. Statement of Informant is straight, clear and shows no hesitation or hindrance, which shows the confidence, when a witness makes a correct statement. There is a very long cross-examination of P.W.1-Informant, which, continued for about three days. We have gone through the entire cross-examination of P.W.1, but find no such material contradiction which may discredit him and render statement of Informant unreliable or not creditworthy. He has consistently stated that first shot was fired by Ran Vijay Singh and thereafter, by Ram Pal Singh.
32. Ran Vijay Singh, appellant has given a very long statement under Section 313 Cr.P.C. and has answered 51 questions. Replying Question No. 17, he has admitted that he opened fire on Shiv Raj Singh and answering Question No. 8, he has stated that he fell down at his (appellant) door. While answering Question No. 51, he has said that on 11.09.1982, in the early morning, at around 06.30-06.45 a.m., he was studying in his room, he heard shrieks and firing noise, whereupon he went outside and saw Shiv Raj Singh, Shiv Mangal Singh, Shiv Pratap and Shiv Ratan. Shiv Raj Singh had pistol and Shiv Mangal Singh had country-made pistol in his hand. Shiv Pratap and Shiv Ratan had lathis. They i.e. Shiv Pratap and Shiv Ratan were hitting his father and mother with lathis. Appellant's mother fell down on his father, whereupon Shiv Ratan hit lathi on head also. Appellant exhorted, whereupon Shiv Raj Singh put cartridge into his pistol and said that today he will kill them, whereupon to save his parents, appellant fired from his father's gun, which hit Shiv Raj Singh and Shiv Mangal Singh both.
33. Therefore, factum that appellant fired upon Shiv Raj Singh is not in dispute. The question now is whether aforesaid fire was in self-defence or not. We find that appellant's answer to Question No. 51 is self-contradictory, inasmuch as on one hand, he said that he was studying in early morning on 11.09.1982 in his room and was hearing firing noise and shrieks, and ran outside. At this stage, he had no occasion to carry his father's gun with him and thereafter, what he has said is that there was no occasion for him to get his father's gun. The statement of appellant is contradictory.
34. Upon evaluation, we find that statement of Informant is more trustworthy that appellant had his father's gun in his hand, wherefrom, he opened fire, causing firearm injury to deceased Shiv Raj Singh.
35. The statement of P.W.2, who is wife of deceased Shiv Raj Singh is also very categorical, clear and similar, as has been stated by P.W.1. She is also an eye-witness. She has seen the entire incident. She is a literate woman, being a teacher in primary school. In her cross-examination also, nothing could be culled out so as to discredit her testimony.
36. However, learned counsel for appellant contended that both these witnesses of fact are relatives of deceased and therefore, their evidence cannot be accepted. The submission has no force and has to be rejected. Normally, when an incident takes place in house, it is the inmates of house who come forward to depose against accused since they are the persons who would like to see that person who has committed crime, is given due punishment in a Court of law. Such witnesses would not like to give a wrong statement against a person who has not committed crime, and, try to save actual accused. Mere relationship, therefore, is no ground to reject an otherwise trustworthy deposition of such witnesses unless there are other factors to taint such statements providing some reason to doubt their testimony.
37. In a catena of judgments Supreme Court has repeatedly held that a close relative would be the last to screen the real culprit and falsely implicate an innocent person.
38. In Rameshwar Vs. The State of Rajasthan, AIR 1952 SC 54 at page 59, Court held as under:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person."
(emphasis added)
39. In Masalti Vs. State of U.P., AIR 1965 SC 202, Court said:
"Normally close relatives of the deceased would not be considered to be interested witnesses."
40. In Hari Obula Reddi and others v. The State of Andhra Pradesh, AIR 1981 SC 82, a three-Judge Bench of Supreme Court has held:
"Evidence of interested witnesses is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. It cannot be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon." (emphasis added)
41. In Kartik Malhar Vs. State of Bihar, (1996) 1 SCC 614 Court has opined as under:-
"A close relative who is a natural witness cannot be regarded as an interested witness, for the term ''interested' postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason." (emphasis added)
42. In Pulicherla Nagaraju alias Nagraja Reddy Vs. State of Andhra Pradesh, AIR 2006 SC 3010, Court has observed as follows:
"It is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or close relative to the deceased, if it is otherwise found to be trustworthy and credible. The said evidence only requires scrutiny with more care and caution, so that neither the guilty escapes nor the innocent is wrongly convicted. If on such careful scrutiny, the evidence is found to be reliable and probable, then it can be acted upon." (emphasis added)
43. In Harivadan Babubhai Patel vs. State of Gujarat (2013) 7 SCC 45, Court observed as under:-
"In view of our aforesaid analysis, we are unable to accept the submission of the learned counsel for the appellant that the evidence of the eye witnesses should be rejected solely on the ground that they are close relatives and interested witnesses."
44. In present case, when evidence of eye-witnesses, particularly when one of the eye-witness is admittedly an injured witness also in the same incident, is clear, categorical and trustworthy and there is nothing on record to discredit them or any reason to disbelieve them, the mere fact that they are close relatives of deceased would make no difference and their evidence cannot be rejected for this reason alone.
45. P.W.3, Rajendra Singh is a neighbour and an eye-witness to altercation and abuses hurled by accused Ran Vijay Singh and Ram Pal Singh. He is a neighbour of deceased and had occasion to hear the noise since he is residing just at a distance of two houses from the place of incident.
46. Learned counsel for appellants contended that he was not an eye-witness of the incident, but even if his statement is excluded, we find that evidence of P.W.1 and P.W.2 is sufficient to prove incident. In criminal trial, it is not the quantity of evidence but the quality of evidence, which matters. It is well settled that it is quality and not the quantity of witnesses, which is important. Time honoured principle is that the evidence has to be weighed and not to be counted. The test is whether evidence has a ring of truth and is cogent, credible and trustworthy or otherwise.
47. In Namdev Vs. State of Maharashtra (2007) 14 SCC 150, Court has said:
"Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence."
48. Further in Veer Singh & Ors. Vs. State of U.P.; 2014 (84) ACC 681, Court said:
"legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity, or plurality of witnesses. It is not the number of witnesses, but quality of their evidence, which is important. As there is no requirement under the law of evidence that particular number of witness is to be examined to prove / disprove a fact. Evidence must be weighed and not counted. It is quality and not quantity, which determines. The adequacy of evidence as has been propounded under Section 134 of Evidence Act. As a general rule, Court can and may act on the testimony of a single witness, provided he is wholly reliable. Testimony of witness, cogent, credible and trustworthy having ring of truth, deserves its acceptance."
49. The injuries caused to deceased and the postmortem report have been proved by Dr. A.K. Upadhyaya, P.W.4 and learned counsel for appellant could not point out any discrepancy therein.
50. In support of plea of self-defence, statement of D.W.1 Dr. Surendra Singh, D.W.2 Ramesh Chandra Verma, D.W.3 Ram Pal Singh and D.W.4 Atar Singh have been recorded. We have gone through the above statements and find that statement of co-accused Ram Pal Singh is not supported by statement of accused himself inasmuch as accused himself has stated that hearing firing noise, he went outside to see what was happening and at that time, he was studying in his room and thereafter, he saw deceased and brothers abusing and beating his parents and in this period, he had no occasion to get his father's gun, but Ram Pal Singh, co-accused, who himself has been examined as D.W.3, has said that when deceased and his brothers were allegedly beating parents of accused, during this period, Ran Vijay Singh came outside his house along with his gun at the door of Ram Pal Singh and exhorted deceased Shiv Raj Singh and his brothers that they should run away, but they continued to beat. The statement of Ram Pal Singh reads as under :-
"Isi Dauran Mera Ladka Ran Vijay Singh Banduk Lekar Ghar Me Se Mere Darwaje Me Aa Gaya."
51. This is contradictory to the statement of accused himself when he answered Question No. 51 under Section 313 Cr.P.C. However, that by itself is not sufficient to disbelieve the defence taken by appellant that no incident as pleaded in defence had happened. Therefore, we have examined other material also. Record shows that Smt. Parwati Devi, mother of appellant and wife of co-accused Ram Pal Singh had lodged a report as Case Crime No. 682A, under Sections 147, 148, 149, 307, 452 I.P.C. on 11.09.1982 itself, in which no time has been mentioned. She was also medically examined by Dr. M.L. Gupta, who has also appeared as P.W.6 and verified injury report Ex.Ka.5. The injuries found on the person of Smt. Parwati Devi are as under :-
"lacerated wound 3 c.m. X 1.5 c.m. X scalp deep, over left side of scalp, 10 c.m. above from left ear. Fresh bleeding present.
She complained of pain over right hip. But no mark of any external injury seen."
52. Co-accused Ram Pal Singh was also examined by Dr. Surendra Singh on next day i.e. 12.10.1982 and his injury report Ex.Kha.1 has been proved by Dr. Surendra Singh, who appeared as D.W.1. He has stated that injuries were simple in nature.
53. The defence evidence, however, is not very clear and categorical. Smt. Parwati Devi, Informant lodging cross case, has not been examined in defence. In the alleged report lodged by her, it is stated that Shiv Raj Singh and his brother came to her house when her husband Ram Pal Singh and son Ran Vijay Singh both were not present, though Ran Vijay Singh himself has stated that he was studying in his room in early morning and when he heard noise, he came out from his room to see the incident. The report also says that when Shiv Raj Singh and his brothers started firing, it caused injuries to her daughter-in-law, her daughter and herself, but these firearm injuries have not been found on the person of Informant Smt. Parwati Devi and others, who have not been adduced in evidence at all. Therefore, this report clearly appears to be false and statement of defence witnesses are also contradictory and unreliable. In these facts and circumstances, we find no hesitation in holding that court below has rightly disbelieved evidence of appellant with regard to self-defence.
54. Self-defence is a double-edged weapon. If successfully proved, the person charged can get its advantage, but otherwise the burden of prosecution gets substantially reduced inasmuch as prosecution has simply to discharge the formal onus and thereafter, onus shifts upon defence to prove that incident had taken place in self-defence and not otherwise and virtually, heavy onus lies upon the defence, which defence has failed to discharge in this case.
55. In view thereof, we do not find any reason to hold that court below has not rightly appreciated evidence. It has held appellants guilty of offence rightly.
56. So far as sentence is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in individual cases.
57. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligatory upon court to constantly remind itself that right of victim can never be marginalized. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide : (Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].
58. In view of above proposition of law, the paramount principle that should be the guiding laser beam is that punishment should be proportionate to gravity of offence.
59. Hence, applying the principles laid down by Supreme Court in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed in the case in hand, we are clearly of the view that punishment imposed upon accused-appellants is proportionate to gravity of offence and, therefore, impugned judgment of Court below does not deserve to be interfered with on this score also.
60. In the result, appeal is dismissed. Impugned judgment and order dated 27.04.1984 passed by Sri Harish Chandra Saxena, Sessions Judge, Mainpuri in Sessions Trial No. 511 of 1982, convicting and sentencing the appellant to undergo life imprisonment under Section 302 IPC is hereby confirmed/affirmed.
61. Appellant, Ran Vijai Singh, is on bail. His bail bonds are cancelled and the sureties are discharged. Appellant is hereby directed to surrender forthwith before the Court concerned to serve out the remaining sentence.
62. Lower Court record alongwith a copy of this judgment be sent back immediately to Court concerned for compliance and further necessary action.
Order Date :- 22.4.2020 I. Batabyal/AK