Allahabad High Court
Chet Ram And Others vs State Of U.P. on 23 April, 2020
Equivalent citations: AIRONLINE 2020 ALL 1847
Bench: Sudhir Agarwal, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on: 27.1.2020 Delivered on: 23.4.2020 In Chamber Case :- CRIMINAL APPEAL No. - 527 of 1985 Appellant :- (1) Chet Ram (2) Ghan Shyam (3) Ram Karan (4) Adya Prasad Tiwari Respondent :- State of U.P. Counsel for Appellant :- S.K.Chaturvedi,Anurag Shukla Counsel for Respondent :- A.G.A.,Ajay Kumar Pandey,Sanjiv Ratan Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra,J.
(Delivered by Hon'ble Rajeev Misra,J)
1. This Criminal Appeal under section 374 Cr.P.C has been preferred against judgement and order dated 17.1.1985, passed by Sri K. Narayan, Sessions Judge, Basti in S.T. No. 4 of 1984 (State Vs. Chet Ram and Others) under sections 302 and 302/34 IPC, Police Station Sonha, District Basti. By impugned judgement and order, accused appellant Chet Ram has been convicted under Section 302 IPC and sentenced to undergo Rigorous Imprisonment (hereinafter referred to as 'R.I.') for life. He has further been convicted and sentenced under Section 324 read with section 34 and 404 IPC. Consequently, accused-appellant is to undergo R.I. for two months and four months, respectively. Accused appellant Ghan Shyam and Adya Prasad have been convicted and sentenced under section 302 read with section 34 IPC for rigorous imprisonment for life. They have further been convicted to undergo two months and four months R.I. under sections 324/34 and 404 IPC. Accused appellant Ram Karan has been convicted and sentenced to undergo imprisonment for life under section 302/34 IPC and further R.I. for two months under section 324 read with section 34 IPC. All the sentences have been ordered to run concurrently.
2. We have heard Mr. Gopal Swaroop Chaturvedi, Senior Advocate assisted by Mr. Anurag Shukla, learned counsel for appellants, learned A.G.A. and Mr. Satish Trivedi, Senior Advocate, assisted by Mr. Ajay Kumar Pandey, learned counsel for respondents.
3. Prosecution story as emanating from First Information Report (hereinafter referred to as 'F.I.R') as well as evidence on record may be stated in brief as under:
4. A written report Ex.Ka-1 was presented before Station Incharge, P.S. Sonha, District Basti by informant P.W.1 Rahjendra Nath Tiwari, stating therein that he is resident of village Rengi under Police Station Sonha, District Basti. On 29.12.1982 at about 12:00 noon, he along with his cousin Chandra Shekhar Tiwari had gone on bicycle to S.D.M Sadar at Block Saltaua, District Basti to enquire about Kerosene Oil. When they reached at Block office, Saltaua, he was informed that programme of SDM stood cancelled. Thereafter PW1 informant along with his brother Chandra Shekhar Tiwari, after making purchase in Saltaua Market returned to their home on foot. He was also being accompanied by Parmatma of his village, Ram Naresh resident of village Rudrapur and Pulloo Ram resident of village Koilsa. Informant's brother Chandra Shekhar Tiwawri was armed with his D.B.B.L. licensed gun and also carrying cartridge belt. As soon as they reached northern side of Saltauwa Market at about 4:00 pm, accused appellant Chet Ram, on account of old enmity of litigation, pointing towards informant's brother, exhorted other co-accused to kill him. Chet Ram who was holding a bomb in his right hand, hurled the same aiming at head of Chandrashekhar Tiwari, as a result whereof his left hand along with head were blown. Informant's brother fell down on sustaining injuries. In the meantime, Ghan Shyam Tiwari, Ram Karan, Adya Prasad continued firing at the brother of informant with their respective weapons . Ghan Shyam Tiwari was armed with Pistol, whereas Ram karan and Adya Prasad were armed with Guns. Accused appellants took away deceased's DBBL Gun along with cartridge belt, his wrist watch of Citizen Make, new bicycle of green colour, purchased about 15 days ago, and also the bag hung in the bicycle, containing papers/ documents of kerosene oil etc. On account of injuries sustained by Chandra Shekhar Tiwari, he died instantaneously. Several other persons going to the market also sustained pellet injuries. F.I.R. further recites that accused persons while firing were saying that they have taken revenge of the murder of their brother and father. They held threats that anybody daring to come near them would also not be spared. Accused appellants along with aforesaid articles fled away in north-east direction. On account of fear, informant and others did not follow them or catch them. Dead body of informant's brother was lying on spot in the supervision of witnesses Parmatma, P.W.2 Ram Naresh and P.W.4 Pulloo Ram.
5. On the basis of aforesaid written report Ex. Ka-1, Constable Moharir Daya Shanker Yadav prepared Check F.I.R, Ex. Ka-9 and also made entry in the General Diary as report no. 27, a copy whereof was placed in Court as Ex. Ka-10. After registering the case, Investigation was undertaken by P.W.9 S.I. Mahima Pratap Rao Station Officer P.S. Sonha, Basti. He immediately proceeded to the place of occurrence. On the way at Saltauwa Tri Corssing, he met S.I. Ashok Kumar Pandy, who disclosed that injured Babu Ram, Ram Pher, Jhinkan and Ram Jatan have been sent to District Hospital Basti, along with requestion for medical examination of injuries. Thereafter, S.I. Ashok Kumar Pandey also accompanied him and after reaching the place of occurrence, P.W.9 prepared inquest, Photo Lash and Chalan Lash, Ex.-ka-11, Ex. Ka-12 and Ex. Ka-13 respectively; after sealing the dead body, sent the same to Chief Medical Officer, Basti for post-mortem along with letter of request Ex. Ka-14 and copy of specimen seal Ex. Ka-15; prepared site plan Ex ka-16; took into possession sample of blood stained and plain earth in separate packs for chemical examination and prepared recovery memo Ex.Ka-17; took into possession splinters of bombs and four cartridges (Material Ex. 1 and 2) and prepared recovery memo Ex. ka-18; recorded statement of S.I. Ashok Kumar Pandey.
6. Autopsy on the dead body of deceased Chandrashekhar Tiwari was conducted by P.W. 6 Dr. A.K. Mehrotra on 30.12.1982 at about 2:00 pm. According to autopsy surgeon, deceased was aged about 42 years and duration of death was about one day old at the time of post-mortem. He was of average built; rigour mortis was present all over body; Eyes and mouth were closed; abdomen slight distended; greenish discolouration found present on the Iliac region. He found following ante-mortem injuries on the body of deceased:
"(i) Gun shot wound of entry with inverted lacerated margins 0.8cm x 0.8 cm x muscle deep on the right buttock, 13 cm horizontally backwards from the right greater trochanter. The wound was directed slightly downwards, inwards and forward.
(ii) Gun shot wound of entry with inverted lacerated margins of size 0.8cm x 0.8 cm on the gront of chest, 10cm from the right nipple at 6 o'clock" position. The wound was directed inwards and backsards.
(iii) Abrasion with charring 26 cm x 22 cm on front of outer wall of left side of chest wall in the lower 2/3 part.
(iv) Badly lacerated wound with charred margins at places present all over the left upper arm, 8.8 cm below top of left shoulder. The left humerus was fractured in pieces. A squarish metallic piece was removed from this wound. There was a corresponding size of wound present in the proximal part of left uppper arm of the upper limb which was received separately from the body. Charring was present in this wound also.
(v) Badly lacerated wound with charring present in the left side of shoulder measuring 25 cm x 18 cm x brain cavity deep starting from left side of fore-head and going towards occipit. The brain matter was badly coming out of the wound due to fracture of all bones of skull. The pars of the fractured bone pieces were missing. This would also extended upto the floor of the mouth.
(vi) Two lacerated wounds with everted margins each of the 1 cm x 0.8 cm and 0.7 cm x 0.5 cm communicating with injury no. 5.
(vii) Lacerated wound with everted margins measuring 3 cm x 2.5 cm below injury no.5 communicating with injury no.5 on the back of right side of skull, 4 cm right to occipit.
(viii) Multiple abrasion in an area of 7cm x 5cm with scarching present on the chin."
7. Injuries of Babu Ram was examined by P.W. 8 Dr. L.P. Agarwal, on 29.12.1982 at 8:10 pm. "(i) Fire arm wound 0.2 cm x 0.2 x muscle deep on the left hand, 2 ½ below the thumb.
(ii) Two gun shot wounds, each 0.2 cm x 0.2 cm x muscle deep on the left hand front, 13 cm above the wrist joint.
(iii) Fire arm wound 0.2 cm x 0.2 cm x muscle deep on the back of right hand, 3cm below the little finger.
(iv) Fire arm wound 0.2 cm x 0.2 cm x sking deep on the right side of abdomen, 5cm above the unblicus. A pellet was visible in this wound.
(v) Fire arm wound 0.2 cm x 0.2 cm x muscle deep on the inner aspect of right thigh in the upper 1/3 portion.
(vi) Gun shot wound 0.2 cm x 0.2 cm on the front aspect of right thigh, 10 cm above the knee joint."
All these injuries in the opinion of Dr. Agarwal were simple and caused by some fire arm.
8. P.W. 7 Dr. G.P. Agarwal, also examined the injuries of Injured Jag Ram on 30.12.1982 at 1:50 p.m and found three gun shot wounds as under:
"(i) Gun shot wound 0.3 cm x 0.3 cm x depth not probed on the right side of chest, 8cm above and lateral to the right nipple. There was not blackening or tattooing. Blood clot was present.
(ii) Gun shot wound 0.3 cm x 0.3 cm x depth not probed, 4.5 cm below injury no.1. The injury had clotted blood but no blackening or tattooing.
(iii) Gun shot wound 0.3 cm x 0.3 cm x depth not probed in the front of right leg, 4.5 cm below the knee. Clotted blood was present though there was no blackening or tattooing."
The injuries in the opinion of Dr. Agarwal were simple and caused by some fire arm. He prepared injury report Ex.Ka-6
9. Injured of P.W. 4 Pulloo Ram was examined by P.W.5 Dr. Sudhakar Dwivedi on 31.12.1982 at 4:40 pm. He found following injuries on his person:
"(i) Gun shot wound 0.25 cm x 0.25 cm x muscle deep on the top of front of left upper arm, 6.5 cm below the lateral to the outer end of left clavicle. The wound was suppurating and inflammation in an area of 1cm x 1 cm around, was also seen. "
Dr. Dwivdei was of the opinion that this injury was caused by some fire arm and was about two days old at the time of his examination.
10. Injured Jhinkan was examined by P.W.8 Dr. G.P. Agarwal at the same day at 29.12.1982, who found following injuries on his person:
(I) Lacerated wound 1 cm x 0.2 cm x depth not probed on the left side forehead, 5cm. above the eye brow. There was no blackening, tattooing or bleeding.
(ii) Lacerated wound 1.5 cm x 0.3 cm depth not probed 205 cm below injury no.1 with no blackening tattoing, though bleeding was still there.
(iii) Abrasion 3 cm x 105 cm on the right side of fore head 3 cm above the eye brow, surrounded by a traumatic swelling in an area of 5 cm x 5 cm.
(iv) Lacerated wound 1.5 cm x 0.2 cm x depth not probed at the root of nose left side. Bleeding was present in this wound.
(v) Abrasion 1.5 cm x 0.5 cm on the left side of upper lip with bleeding.
(vi) Blackened area 3.5 cm x 1 cm in the front of nect.
(vii) Lacerated wound 3 cm x 0.3 cm x 0.5 cm on the left side of chest.
(viii) Lacerated wound 3 cm x 0.5 cm x 0.5 cm on the back, outer aspect of left fore-arm, 7 cm below the elbow.
(ix) Lacerated wound 3 cm x 1 cm x muscle deep on the back of left fore-arm with bleeding present.
(x) Abrasion 0.5 cm x 0.5 cm on the back of left fore-arm.
(xi) Traumatic swelling 12 cm x all around on the left fore-arm.
(xii) Blackened area with bleeding 2 cm x 0.2 cm on the front of right thigh.
The injuries were fresh in the opinion of Dr. G.P. Agarwal and migh have been caused by explosive substance like Hathgola. He prepared injury report Ex.Ka-4.
11. Ex. Ka-5 is medical report of injured Ram Jatan who was examined by P.W. 8 Dr. L.P. Agarwal on 29.12.1982 at 8.05 pm. He found single gunshot wound; 0.2 cm x 0.2 cm x depth not probed, cricular in shape on the right of chest 6 cm above the nipple. This was surrounded by a swelling in an area of 8 cm x 6 cm.
12. Ex. Ka-7 is the injury report in respect of Ram Pher, prepared by P.W.8 Dr. L.P. Agarwal on 29.12.1982 at 8.20 pm. He found following injuries on his person :
"(I) Fire arm wound 0.2 cm x0.2 cm x skin deep on the back of nose.
(ii) Fire arm wound 0.2 cm x 0.2 cm x muscle deep on the left leg, 12 cm below the knee.
(iii) Fire arm wound 0.2 cm x 0.2 cm x muscle deep on the back of left leg, 7 cm below injury no.2."
The duration of injuries in the opinion of Dr. Agarwal was about fresh and the injuries were simple.
13. Injuries of Babu Ram was examined by P.W.8 Dr. L.P. Agarwal at 8.10 am. He found following injuries on his person:
"(i) Fire arm wound 0.2 cm x 0.2 cm x muscle deep on the left hand, 2 ½ cm below the thumb.
(ii) Two gun shot wounds, each 0.2 cm x 0.2 cm x muscle deep on the left hand fron, 13 cm above the writ joint.
(iii) Fire arm wound 0.2 cm x 0.2 cm x muscle deep on the back of right hand, 3 cm below the little finger.
(iv) Fire arm wound 0.2 cm x 0.2 cm x skin deep on the right side of abdomen, 5 cm above the umblicus. A pellet was visible in this wound.
(v) Fire arm wound 0.2 cm x 0.2 cm x muscle deep on the inner aspect of right thigh in the upper 1/3 portion.
(vi) Gun shot wound 0.2 cm x 0.2 cm on the front aspect of right thigh, 10 cm above the knee joint."
All these injuries in the opinion of Dr. Agarwal were simple and caused by some fire arm.
14. After completing investigation, P.W. 9 S.I. Mahima Pratap Rao submitted Charge-Sheet Ex.ka-26 in the Court of Chief Judicial Majistrate, Basti, who took cognizance of the offence under section 302/394 IPC and since case was triable by Court of Sessions, he committed the case to Court of Sessions on 5.1.1984. It was registered as Sessions Trial No. 4 of 1984.
15. Learned sessions Judge framed charges against accused appellants on 6.4.1984. Accused Chet Ram was charged under section 302 IPC as under:
" That you, on 29.12.1982 at about 4 p.m. near Saltauwa Bazar, within the circle of P.S. Sonha of this district did commit murder by intentionally/knowingly causing the death of later Chandra Shekhar Tiwari of village Rengi, and you thereby committed an offence punishable u/s 302, IPC and within the cognizance of this Court of Sessions.
Asd I hereby direct that you be tired by this Court on the said charge"
16. Accused Ghan Shyam Ram Karan and Adya Prasad were charged under section 302 read with section 34 IPC, as under:
" That you, in furtherance of the common intention of you all and co-accused Chet Ram, on 29.12.1982 at about 4 p.m. near Saltauwa Bazar within the circle of P.S. Sonha of this district did commit murder by intentionally/knowingly causing the death of late Chandra Shekhan Tiwari of village Rengi, and you thereby committed and offence punishable u/s 302 IPC read with section 34 I.P.C. and within the cognizance of this Court of Sessions.
And I hereby direct that you be tried by this Court on the said charge."
17. All four accused were further charged under section 307/34 IPC and under section 404 IPC.
18. All the accused denied charges, pleaded not guilty and claimed trial.
19. In order to prove its case, prosecution in all examined ten witnesses, out of whom PW 1, informant Rajendra Nath Tiwari, PW2 Ram Naresh PW3 Jhinkan and PW4 Pulloo Ram are witnesses of fact and they have stated material facts about the incident. Rest are formal witnesses of Police and Medical department.
20. PW 5 Dr. Sudhakar Dwivedi examined injuries of PW. 4 Pulloo Ram and has proved injury report Ex. Ka-2.
21. P.W.6 Dr. A.K. Mehrotra conducted autopsy on the dead body of Chandra Shekhar, and has proved post mortem report Ex. Ka-3.
22. PW-7 Dr. G.P. Agarwal examined injuries of injured Phinkan, Ram Jatan and Jagram, and proved their injury reports Ex. Ka-4, Ka-5 and Ka-6, respectively.
23. P.W.8 Dr. L.P. Agarwal, examined injuries of Ram Pher and Ram Karan, and has proved their injury reports Ex. Ka-7 and Ex.Ka-8 respectively.
24. P.W.9 S.I. Mahima Pratap Rao has proved written report Ex.Ka-1, Check F.I.R. Ex.Ka-9, copy of G.D. Report Ex. Ka-10, inquest Ex. Ka-11, Photo Lash Ex. Ka-12, Chalan Lash Ex. Ka-13, letter of request for post-mortem Ex. Ka-14, copy of specimen seal Ex. ka-15, Site plan Ex.ka-16, recovery memo Ex. ka-17 in respect of collecting blood stained and plain earth, recovery memo Ex.ka-18 in respect of splinters of bomb and empty cartridges, Material Exhibit-1 Bomb splinters and pallets, two cartridges Material Exhibit-2, letters of request Ex.ka-19, ka-20, Ka-21, Ka-22 Ka-23 and Ka-25, respectively for Medical Examination of the injuries of injured Jhinkan, Ram Jatan, Ram Pher, Babu Ram, Jag Ram and P.W. 4 Pulloo Ram, recovery memo in respect of recovery of Jursey and Banyan taken from Pulloo Ram Ex. Ka-5 and Charge-sheet Ex.Ka-26.
25. PW. 10 Indrajeet Singh, X-Ray Technician of District Hospital, Basti, has proved X-Ray plates of injured Ram Pher, Jhinkan and Ram Jatan, Material Exhibits- 3, 4 and 5 respectively. He has also proved their X-Ray reports Ex.Ka-27, Ka-28 and Ka-29 respectively.
26. After conclusion of prosecution evidence, accused appellants were examined under section 313 Cr.P.C. They have denied the prosecution version, statements of witnesses and pleaded ignorance about the verdict and investigation. They have stated that they have been implicated falsely and witnesses were deposing against them, on account of enmity. Accused-appellant Ghan Shyam, Ram Karan and Adya Prasad Tiwari have further stated that Chandra Shekhar Tiwari had been killed in the darkness of night and owning to enmity with several persons, and accused-appellants have been falsely implicated.
27. After closure of evidence and upon hearing learned counsel for the parties, learned Sessions Judge, by impugned judgement and order, convicted and sentenced accused-appellants as stated above. Feeling aggrieved by their conviction and sentence, awarded by Court below accused appellants have now come up in this appeal.
28. Learned counsel for appellants before this Court has not challenged the finding of court below about the date, time, place and the manner in which death of Chandra Shekhar Tewari has taken place. Therefore, we are now required to examine only one question, i.e., "whether crime has been committed by the accused in manner prosecution has claimed and they have been rightly convicted by Court below".
29. P.W.1 Rajendra Nath Tiwari, is the cousin brother of deceased Chandrashekhar Tiwari. This witness is resident of same village in which, deceased resided. There was old enmity between appellant Chet Ram and P.W.1 as well as deceased. The other accused could be clearly identified. P.W.1 in his testimony has categorically stated the cause of enmity between accused Chet Ram, the deceased and first informant i.e. P.W.1. He has further explained the manner of occurrence in which Chandrashekhar Tiwari sustianed fatal injuries and ultimately died, whereas six other persons also sustained injuries. The manner of occurrence narrated by P.W.1 also stands corroborated by testimony of other witnesses of fact namely, P.W.2, P.W.3 and P.W.4. P.W.3 Jhinkan, P.W.4 Pallu Ram are injured witnesses. Once injured witnesses have been produced by prosecution then the happening of occurrence cannot be doubted. Accused appellants have not come out with their version of occurrence. In their statement under section 313 Cr.P.C. they have simply denied suggestions put to them. In this regard reference may be may to judgement of Gujrat High Court in State of Gujrat Vs. Bharwad Jakshibhai Nagribhai, 1990 Cr.L.J. 2531, wherein following have been observed in paragraph 28 regarding appreciation of evidence of injured witness:
"28. In our view, the approach of the learned Judge in appreciating the evidence of injured witnesses is on the face of it illegal and erroneous. For appreciating the evidence of the injured witnesses the Court should bear in mind that:
(1) Their presence at the time and place of the occurrence cannot be doubted.
(2) They do not have any reason to omit the real culprits and implicate falsely the accused persons.
(3) The evidence of the injured witnesses is of great value to the prosecution and it cannot be doubted merely on some supposed natural conduct of a person during the incident or after the incident because it is difficult to imagine how a witness would act or react to a particular incident. His action depends upon number of imponderable aspects.
(4) If there is any exaggeration in their evidence, then the exaggeration is to be discarded and not their entire evidence.
(5) While appreciating their evidence the Court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereo-type investigation.
(6) It should be remembered that there is a tendency amongst the truthful witnesses also to back up a good case by false or exaggerated version. In this type of situation the best course for the Court would be to discard exaggerated version or falsehood but not to discard entire version. Further, when a doubt arises in respect of certain facts stated by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story."
30. Applying the aforesaid test while scrutinizing testimony of P.W.3 and P.W.4, we do not find any contradiction exaggeration or embellishment in their testimony. All the witnesses of fact including injured witness have been consistent regarding the manner in which the occurrence took place.
31. The injuries sustained by deceased Chandra Shekhar Tiwari have been proved by P.W.6 Dr. A.K. Mehrotra who conducted Autopsy on the body of deceased. Injuries found by P.W. 6 on the body of deceased have already been noted in detail above. Apart from deceased, six other person have also received injuries which have also been proved by Doctors who have examined them. The deceased as well as injured sustained multiple injuries showing that they were attacked by more than one person. The nature of injuries so sustained by deceased as well as injured clearly show that they were caused not only by hard and blunt torture fire arm but explosive was also used.
32. It is argued that P.W.1 is close relative of deceased, therefore, his statement could not be taken into consideration, but this argument has to be rejected. Normally, when an incident takes place in presence of relatives, it is only they 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 the witness.
33. 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.
34. 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)
35. 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."
36. 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)
37. 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)
38. 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)
39. 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."
40. Thus we find no force in the submission that ocular testimony of PW-1 should be rejected only on the ground that he is a close relative of deceased.
41. It is further submitted that there are some discrepancies in the manner in which P.W.1 has explained the facts, but we do not find any material discrepancy so as to discredit the otherwise creditworthy evidence of P.W.1 on this aspect also.
42. Minor discrepancies, one or two, here and there, are not sufficient to discredit the otherwise trustworthy witnesses. We have gone through the entire evidence very carefully, and find no material contradiction, so as to disbelieve the prosecution case or the individual witness. Minor contradictions are bound to occur but the same will not be fatal as prosecution has otherwise produced trustworthy witness to prove the guilt of accused.
43. In Sampath Kumar v. Inspector of Police, Krishnagiri, (2012) 4 SCC 124, Court has held that minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and sense of observation differs from person to person.
44. In Sachin Kumar Singhraha v. State of Madhya Pradesh in Criminal Appeal Nos. 473-474 of 2019, decided on 12.03.2019, Supreme Court has observed that Court will have to evaluate evidence before it keeping in mind the rustic nature of depositions of the villagers, who may not depose about exact geographical locations with mathematical precision. Discrepancies of this nature which do not go to the root of the matter do not obliterate otherwise acceptable evidence. It need not be stated that it is by now well settled that minor variations should not be taken into consideration while assessing the reliability of witness testimony and the consistency of the prosecution version as a whole.
45. Lest we forget that no prosecution case is foolproof and the same is bound to suffer from some lacuna or the other. It is only when such lacunae are on material aspects going to the root of the matter, it may have bearing on the outcome of the case, else such shortcomings are to be ignored. Reference may be made to a recent decision in Smt. Shamim v. State of (GNCT of Delhi), 2018(10) SCC 509.
46. When such incidents take place, one cannot expect a scripted version from witnesses to show as to what actually happened and in what manner it had happened. Such minor details normally are neither noticed nor remembered by people since they are in fury of incident and apprehensive of what may happen in future. A witness is not expected to recreate a scene as if it was shot after with a scripted version but what material thing has happened that alone is noticed or remembered by people and that is stated in evidence. Court has to see whether in broad narration given by witnesses, whether there is any material contradiction so as to render evidence so self contradictory as to make it unworthy of trust. Minor variation or such omissions which do not otherwise affect trustworthiness of evidence, which is broadly consistent in statement of witnesses, is of no legal consequence and cannot defeat prosecution.
47. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observations, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. Court has to form its opinion about the credibility of witness and record a finding, whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittle, but can be one of the factors to test credibility of the prosecution version, when entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statement of a witnesses cannot be dubbed as improvements as the same may be elaborations of the statements made by witnesses earlier. Only such omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide: State Represented by Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152; Arumugam v. State, AIR 2009 SC 331; Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334; and Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287].
48. In view thereof, we do not find any reason to hold that the court below has not correctly appreciated the evidence. In our view appellants have rightly been held guilty of committing the offence alleged accordingly.
49. 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.
50. 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 an obligation upon court to constantly remind itself that right of victim, well as society at large, never be marginalized. The measure of punishment should be proportionate to gravity of offence. Object of sentencing is 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 victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide : (Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].
51. 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.
52. Hence, applying the principle laid down by Supreme Court in aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, we 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 on this score also.
53. In the result, appeal is dismissed. Impugned judgment and order dated 17.1.1985 passed by Sri K. Narayan, Sessions Judge, Basti, in Sessions Trial No. 4 of 1984 convicting appellants, under Sections Sections 302 and 302/34 IPC is hereby confirmed/affirmed.
54. Appellants, Chet Ram, Ghan Shyam, Ram Karan and Adya Prasad Tiwari are on bail. Their bail bonds are cancelled and the sureties are discharged. Appellants are hereby directed to surrender forthwith before the Court concerned to serve out the sentence awarded to them by court below.
55. Lower Court record alongwith a copy of this judgment be sent back immediately to Court concerned for compliance and further necessary action.
Order Date :-23.4.2020 Arshad