Allahabad High Court
Sriram vs State Of U.P. on 30 July, 2018
Bench: Naheed Ara Moonis, Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Case :- CRIMINAL APPEAL No. - 4540 of 2002 Appellant :- Sriram Respondent :- State Of U.P. Counsel for Appellant :- D.N. Wali,Dharmendra Singh,Ishwar Chandra Tyagi,Jai Raj Singh Tomar Counsel for Respondent :- Govt. Advocate Hon'ble Naheed Ara Moonis,J.
Hon'ble Chandra Dhari Singh,J.
[Delivered by: Hon'ble Chandra Dhari Singh, J.] The instant criminal appeal has been preferred on behalf of the accused-appellant against the impugned judgment and order dated 28.8.2002 passed by the Additional District & Sessions Judge/Fast Track Court No. 2, Meerut whereby the accused-appellant has been convicted and sentenced to serve out life imprisonment in Sessions Trial No. 864 of 1997 (State vs. Sriram and others) under Sections 302 IPC, Police Station Hastinapur District Meerut .
The emanation of facts giving rise to the prosecution in short conspectus is that a first information report was lodged on 5.11.1996 at about 2.45 p.m. with respect to the incident dated 5.11.1996 occurred at about 8.30 a.m. with the allegation that the complainant with his brother Arvind and Janam Singh was standing in vicinity of his village under the passenger shed in search of bus for going to Mawana. Dinesh s/o Hardwari Singh Chauhan was also standing there in search of the bus . On the fateful day at about 8.30 AM, Sriram, who was resident of village Kishorepur came there in association of three persons equipped with country made pistol. They came there and fired with their respective weapons at Janam Singh, brother of the complainant and Dinesh. They sustained fatal firearm injuries as a result of which died on the spot. The complainant and his brother (Arvind) raised alarm and noise in order to save them. On hearing hue and cry raised by them, a number of villagers gathered on the spot. All the four miscreants ran towards sugarcane field after committing murder of Janam Singh and Dinesh Kumar. The accused appellant (Sriram) was a hardcore and notorious criminal. On account of his trepidation and terror, the complainant could not muster courage to go to the police station immediately for registering the first information report. On the basis of tip off of the complainant (Ravindra Singh), the FIR was registered against the applicant and three unknown persons at police station Hastinapur District Meerut vide Vase Crime No. 194 of 1996 under section 302 IPC. Dead body of Janam Singh and Dinesh Singh was lying on the spot. The FIR was registered against the accused Sriram and three other unknown persons.
After lodging of the FIR, the investigating officer swung into action and recorded the statement of the complainant and reached at the place of incident. After conducting the requisite formalities, Panchayatnama of both dead bodies were prepared on the same day in the mid of 4.00 PM to 5.00 PM in accordance with the procedure prescribed. Thereafter, the copy of chik, copy of report, photo lash, chalan lash, report R.I., report C.M.O. and sample seal along with both sealed dead bodies were sent to the mortuary for the autopsy. Postmortem of both the dead bodies were conducted in District Hospital in the interregnum period of 4.00 to 5.00 P.M on 6.11.1996.
The investigating Officer ensued the investigation of the case and took into possession empty cartridges, plain and blood stained soil iand the same were put in a sealed container. The investigating officer also prepared the site plan. Some part of the investigation was conducted by Sub Inspector Vinod Kumar and subsequent thereto, rest of the investigation was done by Inspector-in-Charge, R.P. Yadav. R.P.Yaav the investigating Officer has recorded the statement of Pappu and Naresh on 21.5.1997 wherein both these witnesses divulged the names of remaining three accused persons. The police personnel arrested the accused-appellant Sriram. He also disclosed the name of other three co-accused persons. The investigating officer collected clinching and credible evidence against the accused appellant and three others thus after completing the investigation of the case, the Investigating Officer submitted charge-sheet under Section 302 IPC against all four accused persons.
The case committed by the learned Magistrate was transferred to the Court of Sessions for trial.
The trial court after hearing the prosecution as well as the defence and also after providing the necessary documents to the accused persons framed charges against them under Section 302 IPC. The charges framed against the accused persons were read over and explained to them. The accused persons adjured the charges and claimed to be tried hence the prosecution was called upon to lead the evidence.
In order to prove guilt of the accused persons, the prosecution had examined the complainant Ravindra Singh (PW-1), Arvind (PW-2), Dr. A.K. Gupta (PW-3), S.I. Vinod Kumar (PW-4), Constable Devi Singh (PW-5), Inspector R.P. Yadav (PW-6), S.I. Rishiram Kateria (PW-7) and S.I. Brij Mohan Singh Rana (PW-8) and two court witnesses Pappu (CW-1) and Naresh (CW-2). All the prosecution witnesses had supported the prosecution case.
After examining the prosecution evidence, the accused persons namely Shriram, Bijendra alias Bantee,Pintoo and Rohtash were examined under section 313 Cr.P.C. and in their statement, they denied all the charges levelled against them and pleaded for innocence. They pleaded that they have been falsely implicated in the present case on account of personal vendatta and animosity. In their defence they neither examined any witness nor any record was produced.
The learned trial Judge, Meerut upon appreciation and appraisal of material evidence on record held that the participation of accused Banti, Pintu and Rohtash in commission of said offence was doubtful as they had not caused any injury to the victims and both the eye-witnesses had also discarded their role in the commission of the said incident. The learned Additional Sessions Judge, accordingly, held Sriram guilty for the murder of victims whereby he was convicted and sentenced under Section 302 IPC to serve out life imprisonment and the prosecution had not provided its case beyond all reasonable doubts against Banti, Pintu and Rohtash, thus they were acquitted from the charge under section 302 IPC. Their bonds and sureties were discharged.
We have heard learned counsel for the appellant appearing on behalf of the accused appellant and learned AGA appearing on behalf of the State and perused the material available on record.
Learned counsel for the accused-appellant contended that the judgment and order passed by the learned trial judge is per se illegal and erroneous whereby the appellant has been awarded life imprisonment merely on suspicion while there are serious irregularities and lapses on the part of the prosecution. All the witnesses produced by the prosecution are highly interested and inimical who succeeded in accomplishing their evil design. Ravindra Singh (P.W.1) and Arvind (P.W. 2) who claimed themselves to be present at the crucial juncture of incident but none of them sustained even minor injuries. There are material inconsistency in the prosecution version and the statement of the witnesses which itself creates suspicion about the incriminating circumstances framed against him. The first information report had been lodged with due deliberation and consultation and the explanation given by the prosecution does not unravel about its verity and truthfulness about the prosecution version. The presence of the witnesses is highly doubtful. No strong motive has been attributed for committing the said incident. The motive assigned to the appellant for committing the gruesome and barbarous murder of the son of complainant and Dinesh does not inspire any confidence corroborating its truthfulness and probity. The accused-appellant is absolutely innocent and had been made scape goat on account of conspiracy of the complainant and other witnesses. The testimony of Ravindra Singh (PW-1) and Arvind i ( PW-2) cannot be taken into account for the purpose of reliability and credibility of the prosecution version. The inordinate delay of more than six hours in lodging the first information report is highly fatal to the prosecution version casting shadow on its correctness and faultlessness. The prosecution has failed to prove its case beyond reasonable doubt against the accused appellant therefore, the appeal against the impugned judgment and order dated 28.8.2002 which does not stand on justifiable and valid ground, may be set aside and the appeal may be allowed.
There is embellishment in the testimony of prosecution witnesses. Ravindra Singh s/o Jai Pal Singh has been examined as PW 1 by the prosecution. In his testimony, Ravindra Singh deposed that on 5.11.1996, he and his brother Janam Singh @ Arjun Singh at about 8.30 A.M. arrived at Kishorepur Road in search of bus for going to Mawana. After few minutes, Dinesh Kumar hailing to the village Bastaura also came there. Subsequent thereto, Shriram (appellant) in association of three unknown persons equipped with firearms arrived there. Janam Singh and Dinesh Kumar were discoursing with each other. The accused-appellant and three miscreants opened firings from their respective firearms. Janam Singh and Dinesh Kumar sustained fatal bullet injuries culminating into their death on the spot. After hearing blast of the pellets as well as raising of shrill and cry , the persons of the adjoining village gathered on the spot. The miscreants entered in the field of sugarcane unleashing reign of terror. Ravindra Singh (P.W.1),Arvind ,Rishi Kumar Naresh and Pappu reached at the police station concerned and got the first information report registered which was marked as Ext.Ka.1. It has further been divulged by Ravindra Singh (P.W.1) that prior to the incident, Smt. Geeta w/o Jai Prakash was holding the post of Gram Pradhan. Motion of no confidence was moved against Smt. Geeta. The mother of Ravindra Singh (P.W.1) was a member of Village Panchayat. In the motion of no confidence , the mother of Ravindra Singh (P.W.1) cast her vote against Smt. Geeta and his brother Janam Singh was in agreement with his mother and had pursued the matter against Smt. Geeta. The accused-appellant Sriram who was the adherent of Smt. Geeta was rearing animus and grudge and had decimated his brother Janam Singh causing fatal fire arm injury. Dinesh Kumar was friend of Janam Singh, the brother of the complainant. The complainant further stated Janam Singh and Dinesh Kumar were done to death with fire arm injuries in front of him. He had witnessed entire incident. In the cross-examination nothing has emerged in contradiction to the testimony given by the complainant. He supported the prosecution version and proved the FIR (Exhibit Ka-1).
Arvind (P.W.2), in his statement averred that he in the company of his brother Janam Singh and Ravindra was standing at the Bus Stand adjacent to his village on 5.11.1996 at about 8.30 a.m. in the search of Bus for going to Mawana. In the meantime, Dinesh resident of village Bastaura came there. Janam Singh, the brother of Arvind (P.W.2) and Dinesh were discoursing together at some paces. In the interregnum period, the accused appellant Sri Ram and three unknown miscreants equipped with firearms came there crossing the field of sugarcane and opened fire from their respective weapons on Janam Singh and Dinesh which caused fatal bullet injuries resulting into their death on the spot. The miscreants after committing murder of Janam Singh and Dinesh ran away towards the south of road from the field of sugarcane. Due to explosion of pellets and also hearing the lamentation and shrieks, a number of persons hailing to adjoining village gathered on the spot. Thereafter Arvind (P.W.2), Ravindra (P.W.1) Naresh, Dinoo, Pappu Rishi Kumar reached at the police station and got the first information report scribed. Arvind (P.W.2) further stated that his brother Janam Singh and his friend Dinesh Kumar were done to death by the accused-appellant Sriram and his associates due to personal vendatta as the victim Janam Singh had supported his mother who was member of Gram Panchayat. The mother of victim Janam Singh had cast her vote against Smt. Geeta in consequence thereof Smt. Geeta did not win motion of no confidence. Since the accused-appellant Sriram was stout adherent of Smt. Geeta, therefore, he was nurturing animus and grudge against him and he in association of three unknown persons decimated him with fatal gunshot injuries. Dinesh Kumar was also close friend of Janam Singh, therefore, he was also done to death by the accused -appellant in association with three unknown persons. In the cross-examination nothing has been come out contrary to the chief examination.
Dr. A.K. Gupta (P.W.3) who was posted at P.L.Sharma Hospital Meerut proved the receiving of sealed dead bodies of Janam Singh and Dinesh brought by CP 680 Jagpal Singh and Homeguard Manoj Kumar. He conducted the postmortem of both deceased namely Janam Singh and Dinesh . This witness has authenticated postmortem report of the deceased Janam Singh which was marked as Exhibit Ka 2 as well as his clothes and shoes etc. Dr.A.K. Gupta ( PW 3) who had conducted the autopsy of Dinesh proved his postmortem h and clothes etc. recovered from his body. Following ante-mortem injuries were found on the body ofJanam Singh (deceased) Injuries found on the body of Janam Singh 1 Gun shot wound of entry 3cm X 3cm X chest cavity deep present in left side lower part of chest 12 cm, 13 cm below from left nipple at 4 O Clock position, blackening present around injury. Margins inverted.
2Gun shot wound of entry 3cm X 3.5cm X abdominal cavity deep present in left side over the side of abdomen. 4cm above from left side hip, 20cm outer to umbilicus at 3 O Clock position, margins inverted, blackening present directing medially and slightly upwards.
Internal Examination Blood clotting was found in nose and mouth of the deceased. Spinal bone T 9 was broken. 11th and 12th left ribs were broken. Both lungs and its membranes were ruptured. About 700ml blood was present in both sides of chest. 4 metallic pellets were recovered from both the lungs and chest of the deceased.
Abdomen of deceased was ruptured in which 200ml blood and one metallic pellet were present. Spleen was ruptured. Left kidney was ruptured from which one metallic pellet was recovered. About 1100 ml blood was present in the stomach from which 2 metallic pellets and two pieces card board were recovered. One metallic pellet was recovered from skin of right shoulder. Death had occurred due to shock, hemorrhage excessive bleeding on account of above injuries.
In the course of autopsy following ante-mortem injuries were found on the body of Dinesh Singh 1 Six gun shot wounds of entry each in size of 0.8 cm X 0.8 cm present on outer side of left arm. Present in area of 6 cm X 5 cm, 2 cm above from left elbow, blackening present, direction medially and slightly straight. Margins inverted. Bone of left arm was broken.
2Six gun shot wound of exit each in size of 1 cm X 1 cm present in area of 6 cm X 5.5 cm on inner side of the left upper arm just above elbow. Margins everted.
3Six gun shot wounds of entry present in lower part outer side of chest in area of 6 cm X 5 cm present 10 cm below from left armpit and 12 cm below from left nipple at 4 O clock position. Each in size 0.8 cm X 0.8 cm. Margins inverted.
4Two gun shot wounds of exit each in size of 1 cm X 1cm. Present on side front of chest in area of 3 cm X 3 cm at 2 O clock position, 4 cm above from right nipple.
Internal Examination On internal examination of deceased Dinesh 6th, 7th and 8th ribs of left chest were found to have broken. Left lung and its membrane were ruptured. Upper part of right lung was ruptured and hole was present in heart. Blood was present in both sides of chest. Two pellets were recovered from left lung and membrane of stomach was ruptured. Abdomen was ruptured, many holes present in intestine. Spleen was ruptured. Blood was present in stomach and two pellets were recovered therefrom. Death was occurred due to excessive bleeding and above injuries.
Vinod Kumar (P.W 4) Sub-inspector posted at Police Station Kotwali Meerut stated in his testimony that he had recorded the Panchayatnama and postmortem report of the dead bodies in case diary. He further stated that it came in his knowledge during the course of investigation that in addition to accused Sriram, co-accused Rohtas had also participated in the commission of said incident. He made efforts to nail him but he could not be arrested. This witness was not cross examined by the defence despite opportunity being afforded to him.
Constable Devi Singh (P.W.5) deposed that he was posted on 5.11.1996 at police station Hastinapur District Meerut. He had scribed the FIR on 5.11.1996 at about 2.45 p.m. vide Case Crime No. 194 of 1996 under section 302 IPC on the written information of complainant Ravindra Singh. He had identified and proved Chik Exhibit Ka 4. He had also endorsed on the copy of G.D.which was marked as Exhibit 5.
R.P. Yadav ( PW 6) stated that he was posted as Station Officer Police Station Hastinapur District Meerut on 23.5.1997. He took charge from his predecessor R.P.Gupta Station Officer who was the Investigating Officer of Case Crime No. 194 of 1996 under section 302 IPC. After taking over the charge, R.P. Yadav, Investigating officer recorded the statement of Pappu and Naresh on 21.5.1997. They unrivalled the name of Bante, Pinto and Rohtash in addition to Sriram (appellant). The accused appellant Sriram was arrested on 31.5.1997 by the police personnel in police encounter. The investigating officer R.P.Yadav recorded the statement of accused appellant Sriram. The accused appellant Sriram also divulged the name of Banty, Pintoo and Rohtash for their active participation in the commission of said offence. The investigating officer had also recovered 315 Bore pistol from the possession of Sriram (appellant). He had also recorded the statement of other three accused persons who had confined in District Jail Meerut. The investigating officer after collecting material and clinching evidence against four accused persons submitted the charge-sheet on 15.7.1997 in the court concerned. He proved both the charge-sheet which were marked as Exhibit Ka 6 and Ka 7 respectively.
Rishiram Katheria (P.W.7) who was posted at Police Station Hastinapur District Meerut on 5.11.1996 has confirmed with regard to receiving the information on telephone for the murder of two persons in village Kishorepur and also reaching on the spot with other police personnel. On reaching at the spot, he found the dead body of Janam Singh near the passenger shed saturated with blood. The dead body of Dinesh Singh was also lying at the distance of twenty paces soaked with blood. Both the dead bodies were identified on the confirmation of the village people. It was also informed that both the victims were done to death at about 8.30 a.m. by the hardcore criminal Sriram (appellant) and his three unknown associates near the bus stand. He took both dead bodies in the custody of police personnel. He also inspected the place of incident and got the Panchayatnama of both the dead bodies prepared by his fellow Sub Inspector B.M.Rana. Both the dead bodies were sent to mortuary for postmortem from the place of incident. He took the empty cartridges, plain and blood stained soil from the earth. Rishiram Katheria (P.W.7) in association of police personnel proceeded to nail the named accused Sriram and other three unknown miscreants. He proved the site plan which was marked as Exhibit Ka 8. The signatures of S.i. B.M.Rana on the Panchayatnama of deceased Janam Singh and Dinesh Singh were duly identified and proved by him which were marked as Exhibit Ka 9 and Ka 10.
Brajmohan Singh Rana (P.W.8) who was posted as Sub-inspector at Police Station Hastinapur District Meerut on 5.11.1996 deposed with regard to preparation of Panchayatnama of dead body of Janam Singh under the instruction of the then Inspector In-charge R.R. Katheria. He identified and proved the Panchayatnama which was marked as Exhibit Ka 9. Chalan Nash, report R.I., letter of C.M.O. for conducting of postmortem were prepared and proved as Exhibit Ka 11 to Exhibit Ka 13 respectively. Brij Mohan Singh Rana (P.W.8) had prepared and proved the Panchayatnama of deceased Dinesh Singh which which was marked as Exhibit Ka 10. Chalan Nash, Photo Nash, letter of R.I. andletter of C.M.O. for conducting the post mortem were duly identified and proved as Exhibit Ka 14 to Exhibit Ka 19 respectively.
Witness Pappu and Naresh were not produced by the prosecution and on the application of accused persons these witnesses were summoned and their statements were recorded as C.W. 1 and C.W. 2 respectively.
As per the prosecution story, prior to registration of FIR information on telephone was given by Hakam Ram at police station that two dead bodies were lying on the spot of incident. On this information, the police team left for place of occurrence and found two dead body lying there. Meanwhile at 2.45 PM the complainant got chik FIR registered on the basis of his report. Panchayatnama of Janam Singh and Dinesh were prepared on the same day in the intevening period of 4.00 PM to 5.00 PM respectively and, thereafter, copy of chik, copy of report, photo nash, chalan nash, report of R.I., report of C.M.O. were prepared and samples were sealed. The dead bodies of both the deceased namely Janam Singh and Dinesh Singh were sent to mortuary for postmortem in a sealed cover through Sub Inspector who prepared the Panchayatnama.
We have to analyise the evidence available against the present appellant Sriram. Admittedly, the accused-appellant Sriram was named in the FIR and the incident was occurred at 8.30 AM and FIR has been registered at 2.45 PM on 5.11.1996 in the police station situated at the distance of about 16 kilometers from the place of incident. On behalf of accused, it has been argued that FIR has been registered after a considerable delay and same has not been explained properly.
After perusal of the FIR in which it is stated by the complainant that the delay had occurred in lodging the FIR due to terror and trepidation of accused-appellant Sriram as he was a hardcore and notorious criminal of the locality, therefore, he could not muster courage to lodge the FIR of the said incident immediately and same is completely natural.
It is also argued on behalf of the accused persons that the brothers of Janam Singh namely Ravindra and Arvind were not present on the spot at the time of incident and it has come into notice in the statements of Pappu and Naresh, who have been produced as C.W. 1 and C.W. 2. Firstly the prosecution did not produce both these witnesses before the court and both these witnesses were summoned on the application of the accused persons. Both the witnesses did not support the prosecution version in the examination-in-chief and said that after hearing the explosion of bullet they reached on the spot and according to their version, the brothers of deceased Janam Singh were not present on the spot.
If the statements of both these witnesses namely Pappu (C.W.1) and Arvind (C.W. 2) comes under the purview of reliability, it can wipe out the prosecution story that Ravindra and Arvind were present on the spot at the time of incident. Thus, it is to analyze whether there is resemblance on the important point of statements of Pappu ( PW 1) and Arvind (PW 2) because credibility of their statement can be measured on the touchstone only as on the one hand as per version of C.W. 1 Pappu after going to spot of the incident, Ravindra Singh came to know about the murder of Janam Singh and after getting information, complainant Ravindra Singh went to the police station and lodged the FIR , on the other hand, according to version of C.W. 2 Naresh, the persons running away from the spot of the incident gave information to Ravindra Singh that Janam Singh had been murdered and his dead body was lying on the spot. After getting the information, Ravindra Singh moved swiftly along with other persons towards the place of incident and not at the police station. The contrary statement on such an important point renders incredible the testimony of C.W. 1 and C.W. 2.It is also argued on behalf of the accused appellant that non-presence of Ravindra Singh on the spot is also substantiated from the circumstances that incident in question had taken place at 8.30 AM and he got report registered after a considerable delay of six hours.
In the FIR itself the said fact has been clarified by the complainant that the accused Sriram is a hardcore and notorious criminal and has also been convicted in an another murder case, as such, due to his terror and panic such delay has occurred in lodging the FIR against him and the said delay is not rested on any reason other than the fear and horror of the accused-appellant Sriram.
In the case of State of Haryana vs. Sher Singh & others AIR (1981) SC 1021, Hon'ble Apex Court has held as under:-
"The prosecution is not bound to prove motive of any offence in a criminal case, inasmuch as motive is known only to the perpetrator of the crime and may not be known to others if the motive is proved by the prosecution, the court has to consider it and see whether it is adequate."
It is also authenticated from the record that prosecution had examined the complainant Ravindra Singh as PW-1 who in his statement on oath proved the FIR exhibited as Ka-1. The occurrence took place in the day light and the complainant did not choose to go to police station soon thereafter on account of fear and trepidation of the accused appellant hence the delay occurred in lodging the FIR is natural. Looking to the facts and circumstances of the case, it cannot be said that the delay has not been explained rather the explanation given by the complainant Ravindra Singh regarding delay in lodging the FIR of the incident is quite satisfactory and the delay if any occurred in lodging the FIR will not wipe out the entire prosecution case.
In the case of Ravinder Kumar and another vs. State of Punjab (2001) 7 SCC 690, Hon'ble Apex Court has held as under:-
"The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein.
When there is criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Gloomy people might be ignorant of the need for informing the police of a crime without any lapse of time. They might not immediately think of going to the police station. Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is, the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident. These are the reasons which could cause delay in lodging the FIR." In the case of Tara Singh vs. State of Punjab (1991 Suppl.(1) SCC 536), Hon'ble Apex Court held as under:-
"It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect those saddened persons to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report."
It is true that the complainant Ravindra Singh and Arvind (P.W.2) are the brother of the deceased Janam Singh. It is not in dispute that place of occurrence is the Bus stand. In our opinion the aforesaid prosecution witnesses are natural witnesses and they have no motive to make false statements against the appellant-accused. Even if, there is absence of motive, it would not benefit the accused when there is reliable and acceptable version of the eye witnesses, which is supported by the medical evidence,pointing against him.
We are of the opinion that in a case where near and dear one is killed, his relations and friends would not spare the real culprits and falsely implicate others. In view of the above facts and circumstances of the case, we are of the considered view that relationship is not a factor to affect the credibility of the aforesaid prosecution eye witnesses. Therefore, testimony of the aforesaid prosecution eye witnesses cannot be discarded merely on the ground of being closely related to the deceased.
In the case of Dalip Singh vs. State of Punjab AIR 1953 SC 364, Hon'ble Apex Court has 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 cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
In the case of Kartik Malhar vs. State of Bihar 1996 CRL. L.J. 889, Hon'ble Apex Court has held as under:-
"We may also observe that the ground that the witness being a close relative and consequently, being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case, AIR 1953 SC 364 in which this Court expressed its surprise over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses."
In the case of Shyam Babu vs. State of U.P. AIR 2012 SC 3311, Hon'ble Apex Court has held as under:-
"Where the presence of the eye-witnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence, it will not be permissible for the Court to discard the statement of such related or friendly witnesses. There is no bar in law on examining family members or any other person as witnesses. In fact, in cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured. If the statement of witnesses, who are relatives or known to the parties affected is credible, reliable, trustworthy and corroborated by other witnesses, there would hardly be any reason for the court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the affected party or friend etc".
It is pertinent to mention here that PW-1 Ravindra Singh and PW-2 Arvind were put to lengthy cross-examination, but nothing could be elicited by way of cross-examination so as to create doubt about their presence at the place of occurrence. Their testimonies have been well supported by the medical evidence. The appellant-accused is named in the FIR, there is complete consistency and coherence in the examination-in-chief and cross-examination of the aforesaid prosecution witnesses, the name, time, date and place on which the offence was committed and by whom the offence was committed, has been revealed in the FIR, lodged by PW-1 complainant Ravindra Singh, which is also in coherence with the story set-up in the FIR. There is nothing on record to show if the prosecution witnesses had any animus against the appellant-accused so as to implicate falsely in the present case. Considering the entire facts and circumstances of the case, we are of the considered view that the testimony of aforesaid prosecution witnesses are cogent, credible and trustworthy and have a ring of truth and deserves acceptance. In view of the above facts and circumstances of the case, their appears no justification to disbelieve the statements of the aforesaid prosecution witnesses.
It is true that there are some minor contradictions in the depositions of the prosecution witnesses of facts. Considering the entire facts and circumstances of the case, we are of the considered opinion that contradictions are not so material which goes to the root of the case and materially affect the core of the prosecution case. Therefore, minor contradictions cannot be taken to be a ground to reject the testimony of the prosecutions witnesses of facts.
In the case of State of Rajasthan vs. Smt. Kalki and another (1981) 2 SCC 752, Hon'ble Apex Court has held as under:-
"In the deposition of witnesses there are always normal discrepancies due to normal errors of observation, loss of memory, mental disposition of the witnesses and the like. Unless, therefore, the discrepancies are "material discrepancies" so as to create a reasonable doubt about the credibility of the witnesses, the Court will not discard the evidence of the witnesses".
In the case of Mritunjoy Biswas vs. Pranab alias Kuti Biswas and another 2013 CRI. L.J. 4212, Hon'ble Apex Court has held as under:-
"It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect prosecution case but not every contradiction or omission."
In order to appreciate the evidence, the Court is required to bear in mind the set-up and the environment in the which the crime is committed, the level of understanding of the witnesses, over zealousness of some of the near relations to ensure that everyone ever remotely concerned with the crime be also convicted and everyone gives different way of narration of the same facts. Bearing in mind these broad principles the evidence is required to be appreciated to find out what part out of the evidence represents the true and correct states of affairs. It is for the Court to separate the grain from the chaff. The Court cannot draw adverse inference only because all the witnesses have not been examined, if the evidence of the witnesses produced are trustworthy, the Court can rely on the said evidence to convict the accused. This is because it is quality and not the quantity of evidence that is material.
FIR Ext-1 indicates that at the time of alleged incident Ravindra Singh and Arvind brothers of deceased were also present. Both these eye-witnesses have been examined by the prosecution. It is evident from the record that PW-1 complainant Ravindra singh and Arvind are the eye-witnesses of the incident and their evidence fully supports the prosecution case and they have no motive to make false statement against the appellant-accused. Medical evidence (postmortem report) and the testimony of other prosecution witnesses fully corroborates the prosecution version as well as the testimony of the aforesaid prosecution witnesses. In our opinion both these eye-witnesses are trustworthy and their testimony inspires confidence.
In the case of Veer Singh and others vs. State of U.P., (2014) 2 SCC 455, Hon'ble Apex Court has held as under:-
"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 any particular number of witnesses 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 provided under Section-134 of the Evidence Act. As a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable."
In the case of Shamsher Singh alias Shera vs. State of Haryana, (2002) 7 SCC 536, Hon'ble Apex Court has held as under:-
"It is not necessary that in all cases all the witnesses present at the time of occurrence should be examined, that too on the same point. Mere non-examination of any of the eye- witness to speak on the same point does not impair the prosecution case when the eye-witnesses examined fully support the prosecution case."
After considering the entire facts and circumstances of the case, we are of the considered view that the testimony of all the prosecution witnesses supports the prosecution case. There is nothing on record to show that the prosecution witnesses had any animus against the appellant-accused so as to implicate him falsely in the present case hence there appears no justification to disbelieve the testimony of the prosecution witnesses.
From the above facts and circumstances of the case, it is fully established that the victims succumbed to unnatural death with gun shot injury. The presence of the eye witnesses cannot be doubted or suspected merely they are related to the deceased or on account of minor variation or aberration from the prosecution version. The utterances have consistently and umpteen times been repeated by the witnesses who had narrated and unfolded the incident in a very natural and articulatory manner. The overt act of the accused appellant at the relevant moment is fully established and is unimpeachable beyond a shadow of doubt consistent with the hypothesis of the guilt of the accused appellant within all human probability the act has been done by the accused appellant. The manner in which the victim was done to death with gun shot injury has portrayed very inhuman and gruesome state of mind of the accused appellant. The occurrence is fully supported by the testimony of eye witnesses and the medical evidence which cannot be overclouded by any stretch of imagination or suspicion. In the course of cross examination, the defence side has tried to evolve a story of false implication in order to overshadow the testimony of the eye witnesses. It cannot be doubted that the eye witnesses had not seen the accused appellant who had perpetuated the crime in a very relentless and devilish manner. The delay if any, in lodging the first information report will not falsify the entire prosecution version.
On the basis of verbose and prolix discussions made above and also considering the material evidence on record, we are of the considered opinion that findings of conviction for the offence punishable under Section-302 of the Indian Penal Code recorded by the Trial Court are well substantiated by the evidence on record. The Trial Court has appreciated the evidence in the right perspective. We don't find any justification to interfere with the findings of conviction recorded for the offence punishable under Section-302 of the Indian Penal Code. Therefore, the conviction recorded against the appellant-accused under section 302 IPC is hereby maintained and affirmed .
The appeal is accordingly dismissed.
The order dated 28.8.2002 passed by the Additional District & Sessions Judge/Fast Track Court No. 2, Meerut in Sessions Trial No. 864 of 1997 (State vs. Sriram and others) under Sections 302 IPC is hereby affirmed. If the appellant is on bail, then bail bond is hereby cancelled and he is directed to surrender before the trial court forthwith, failing which the learned Sessions Court shall take appropriate steps to put the appellant accused back in jail to undergo the sentence as awarded to him.
Let a copy of the judgment alongwith the lower court record be immediately sent to the court below for compliance and necessary entries in the relevant register.
Order Date :- 30/7/2018
Shekhar
(Chandra Dhari Singh, J.) (Naheed Ara Moonis, J.)