Allahabad High Court
Parshu Ram vs State Of U.P. on 14 February, 2019
Equivalent citations: AIRONLINE 2019 ALL 2181, 2019 (108) ACC (SOC) 28 (ALL) (2019) 7 ADJ 21 (ALL), (2019) 7 ADJ 21 (ALL)
Bench: Vikram Nath, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 55 Case :- CRIMINAL APPEAL No. - 4857 of 2011 Appellant :- Parshu Ram Respondent :- State Of U.P. Counsel for Appellant :- Smt. Shikha Singh,Ambrish Kumar,Sanjay Srivastava,Upendra Upadhya Counsel for Respondent :- Govt. Advocate with Case :- CRIMINAL APPEAL No. - 4858 of 2011 Appellant :- Ashok Kumar Respondent :- State Of U.P. Counsel for Appellant :- Smt. Shikha Singh,Ambrish Kumar,Rakesh Kumar (Singh),Upendra Upadhya Counsel for Respondent :- Govt. Advocate with Case :- CRIMINAL APPEAL No. - 4859 of 2011 Appellant :- Brajendra Kumar @ Hari Respondent :- State Of U.P. Counsel for Appellant :- Smt. Shikha Singh,Upendra Upadhaya Counsel for Respondent :- Govt. Advocate Hon'ble Vikram Nath,J.
Hon'ble Rajeev Misra,J.
1. The above three appeals have been filed by the respective appellants assailing the correctness of the judgement and order dated 30.03.2010 passed by Additional Sessions Judge, Court No. 1, Kannauj in four session trials: 1. Session Trial No. 154 of 2007 (State of U.P vs. Parashu Ram and Ashok Kumar) arising out of Case Crime No. 291 of 2006 under Sections 302/34, 307/34, 504 and 506 I.P.C., Police Station- Tirwa, District- Kannuaj; 2. Session Trial No. 160 of 2007 (State of U.P vs. Ashok Kumar @ Ramesh) arising out of Case Crime No. 507 of 2006 under Sections 25/27 Arms Act, Police Station- Tirwa, District- Kannuaj; 3. Session Trial No. 159 of 2007 (State of U.P vs. Parashu Ram) arising out of Case Crime No. 292 of 2006 under Sections 25/27 Arms Act, Police Station- Tirwa, District- Kannuaj and 4. Session Trial No. 147 of 2007 (State of U.P vs. Brijendra @ Hari) arising out of Case Crime No. 291 of 2006 under Sections 302/34, 307/34, 504 and 506 I.P.C., Police Station- Tirwa, District- Kannuaj.
2. By the aforesaid judgement, the Trial Judge has convicted appellants, Ashok Kumar and Brijendra @ Hari under Section 302 read with Section 34 I.P.C. and sentenced them to imprisonment for life along with fine of Rs. 10,000/- each. Appellant Parashu Ram has been convicted under Section 307 read with Section 34 I.P.C. and sentenced to undergo 10 years rigorous imprisonment along with fine of Rs. 7,000/-. Appellants Ashok Kumar @ Ramesh and Parashu Ram have been convicted under Sections 25/27 Arms Act and sentenced to 5 years rigorous imprisonment along with fine of Rs. 2,000/- each. Further the trial judge provided that in the event of default in payment of fine, each of the accused would undergo additional imprisonment of 6 months each and lastly all the three appellants have been acquitted of the charges under Sections 504 & 506 I.P.C. by extending them the benefit of doubt.
3. Appellant Parashu Ram is on bail whereas appellants Ashok Kumar and Brijendra @ Hari having been denied bail, are in jail. It is relevant to mention here that while co-appellants Ashok Kumar and Brijendra @ Hari are real brothers, the appellant Parashu Ram is their cousin.
4. The prosecution story in brief is that one Brijesh Kumar Singh s/o Sri Ram Pal Singh gave a written report (Ex. Ka-1) at police Station Tirwa, District Kannauj on 17.08.2006 stating therein that at about 06:00 pm, Brijendra @ Hari armed with a double barrel gun, Parashu Ram carrying a country-made pistol and Ashok carrying a half gun came to the house of Arvind s/o Sri Ram Dohre. They started abusing and are stated to have uttered that they would sacrifice the daughter of Arvind. In furtherance thereof, Parashu Ram is alleged to have strangulated the neck of Kumari Neha, aged about 10 months (daughter of Arvind). Arvind in an attempt to save his daughter, resisted the said ghastly act of Parashu Ram resulting in Parashu Ram firing with the weapon in his hand at Arvind. Arvind got injured. Other residents of the village including Brijesh @ Binu s/o Jagdish Dohre also opposed the aforesaid act of Parashu Ram whereupon Ashok fired from his weapon at Brijesh @ Binu resulting in instantaneous death of Brijesh @ Binu. Upon further resistance of the other residents of the village, the accused are alleged to have climbed up to the terrace of their house and started indiscriminate firing. Rajesh Kumar brother of informant, aged about 35 years was objecting from his terrace. Annoyed with his objection, Brijendra @ Hari fired at Rajesh Kumar from his licensed gun exhorting that he was an old enemy. He was seriously injured and died on the spot. Lallu Singh s/o Raghuveer Singh, Sarvesh Singh s/o Ram Pal Singh, Jagdish s/o Makhan Dohre and Rakesh Tiwari s/o Balak Ram Tiwari who were present at the spot, saw the occurrence and when they challenged the accused, they made their escape good by making indiscriminate firing. The injured Kumari Neha and Arvind Kumar were taken to Kannauj Hosptial by Rakesh Tiwari. The dead body of both the deceased were lying at the spot. The written report further recites that Brijendra @ Hari is a constable in C.R.P.F. whereas, Parashu Ram is a constable in G.R.P. On this written report, a check F.I.R. was registered by Head Moharrir 79 Maheshwar Dayal Sharma at 08.15 pm as Case Crime No. 291 of 2006 under Sections 302/307/504/506 IPC (Ex. Ka-19).
5. The investigation was taken over by the Station House Officer of P.S. Tirwa, namely, Sri L.R. Diwakar. He along with Vishram Singh, Senior Sub Inspector, police station Tirwa, PW-7 immediately went to the place of occurrence, where under the direction of Station House Officer, Vishram Singh, Senior Sub Inspector, got the inquest conducted of both the dead bodies. Opinion was taken from the Panches, the other police papers like photo lash, challan lash and letter to the C.M.O. for postmortem were all prepared by Vishram Singh, Senior Sub Inspector (PW-7). The site plan (Ext. Ka-15) was also prepared. From the terrace of accused Brijendra @ Hari, two blank/used cartridges (12 bore) were recovered. They were sealed and a memo of recovery regarding the same was prepared (Ex. Ka-14).
6. In the night of 18/19.08.2006, Senior Sub Inspector Sri Vishram Singh (PW-7) along with accused Parashu Ram and other police officers went to a place on the direction of the accused Parashu Ram about 100 metres from village, Sukkha Purwa. On his pointing out, a 12 bore gun was recovered from a corn field. On beiing questioned, the accused Parashu Ram stated that the recovered gun was used in the commission of crime. Upon examination of the aforesaid gun, the Police found a used cartridge fixed in the barrel of the gun, which was also recovered. The gun was sealed and a memo of recovery regarding the same was prepared (Ex. Ka-16).
7. On the same day, the accused Ashok Kumar led the police team which included Senior Sub Inspector Vishram Singh (PW-7) to a place about 300 mtrs. west of village Sukhha Purwa which the accused said was his land. From the western boundary of the said plot, he got a half gun recovered which he said had been used in the crime. This half gun was buried under a Neem tree. The same was sealed and a memo of the recovery of the same was prepared (Ex. Ka-17). In respect of both these recoveries, which are fire-arm weapons, two separate cases under Sections 25/27 Arms Act were registered as Case Crime No. 292 of 2006 and 507 of 2006.
8. On 17.08.2006 itself, Kumari Neha was medically examined at 08:55 pm by Dr. Arun Gupta (PW-6) at Vinod Dixit Hospital, Kannauj where he was posted as Medical Officer. On her body, two abraded contusions measuring 2cmx1cm on the right and the left side of neck were noticed and recorded in injury report (Ex. Ka-5). The injuries recorded and the opinion of Dr. Arun Gupta (PW-6) as mentioned in the injury report are reproduced hereinbelow:-
"abraded contusion 2cmx1cm on right side of neck abraded contusion 2cmx1cm on left side of neck.
Child is crying. She is rolling back her eye balls. Neck tight. No cynosis. Pupils size / reaction normal.
Opinion:- Patient kept under observation and referred to LLRM Hospital, Kanpur for further care. Injury is fresh. Caused by some pressure or friction"
9. On the same day, Dr. Arun Gupta (PW-6) examined the injured Arvind Kumar (PW-2) at 06:45 pm and noticed the following injuries on his body vide injury report (Ex. Ka- 4):-
"Multiple fire-arm wound of entry each measuring 2mm diameter. Depth not probed. Margins of wound inverted and lacerated. No BST present. One situate at front of left shoulder/upper part of left upper arm. Second in front of left elbow joint. Third on outer aspect of left elbow joint and forth in inner aspect of middle of left forearm.
Advised X-ray of left upper arm and left forearm Ad/lat view.
Opinion:- Injuries kept UO Advised X-ray. Caused by discharge of some fire-arm and are fresh."
10. Coming back to the two deceased, after the inquest, the dead bodies were sent for postmortem to the District Headquarters. Dr. Arvind Prasad (PW-5) conducted the autopsy on the dead body of deceased Rajesh Kumar at 02:15 pm on 18.08.2006 and prepared the postmortem report (Ex. Ka-2). The following ante-mortem injuries were detailed in the postmortem report:-
"1. Pellet's wound of entry five in number:
a. Pellet wound of entry over left temporal region.
b. Pellet wound of entry in left chest.
c. Two pellet wounds of entry on outer side of left arm.
d. One pellet wound of entry on front of right arm middle part measuring 0.3cm x 0.2cm to 0.2cmx0.2cm, skin muscle and cavity deep.
2. Abrasion three in number back of left elbow measuring 2.15cm to 1cm x 0.5cm."
11. Further on the same day, at 02:45 pm Dr. Arvind Prasad (PW-5) conducted the autopsy on the dead body of Brijesh @ Binu and prepared the postmortem report in his hand writing (Ex. Ka-3). The following ante mortem injuries were reported in the postmortem:-
" Multiple pellet's wounds of entry in front of chest and upper abdomen involving left upper limb measuring 0.3cm x 0.2cm, skin muscle to cavity deep. Margins inverted lacerated and echmosed."
12. The Investigating Officer after recording the statements of the witnesses as also the accused, and after completing the investigation, submitted separate charge-sheets in all the three cases i.e. (Ex. Ka-21) (Ex. Ka-26) and (Ex. Ka-28). After taking cognizance, the Magistrate concerned committed the cases to the sessions for trial. The Trial Judge read out the charges so framed to the accused, who denied the same and claimed to be tried.
13. In the trial, the prosecution filed as many as 30 papers and proved them. As such they were marked as exhibits. The relevant exhibits include the written report (Ex. Ka-1), three first information reports (Ex. Ka-19, 22 and 30), recovery memos, injury reports (Ex. Ka- 4 and 5), postmortem report (Ex. Ka- 2 and 3), the Inquest (Ex. Ka- 6 and 10) and three charge-sheets (Ex. Ka- 21, 26 and 28) which are also part of the paper book. The other exhibits are part of the original record and we have examined them also.
14. Further the prosecution to prove it's version of the occurrence led as many as 13 witnesses:-
PW-1, Brijesh Kumar Singh is the first informant, PW-2, Arvind Kumar is the injured, PW-3, Jagdish Dohre is the father of deceased Brijesh @ Binu and PW-4 Lallu Singh. They all are eye-witness of the occurrence. PW-5 Dr. Arvind Prasad had conducted the autopsy on the dead body of both the deceased and had proved the postmortem reports. PW-6 is Dr. Arun Gupta, who had medically examined Kumari Neha and Arvind Kumar and had proved the injury reports, Vishram Singh, PW-7 had carried out partial investigation initially and had proved the relevant police papers prepared by him during the course of investigation, PW-8 is Inspector, Ahibaran Singh who had secured the arrest/surrender of the accused. He had further made the recoveries of the fire-arm weapons on pointing out of the two accused, PW-9, Surendra Singh is witness of the recovery of the half gun from the accused Ashok. PW-10 HM-79 Maheshwar Dayal Sharma had prepared the Check F.I.R. of Case Crime No. 291 of 2006, PW-11 is constable C/C 54 Tejveer Singh, who had made G.D. entries of the recovered weapons and had proved the same, PW-12, Suraj Pal Singh, retired Sub Inspector had carried out the investigation in the Arms Act cases and PW-13, Sri Magan Singh had registered the F.I.R. under Section 25/27 Arms Act.
15. All the accused were examined under Section 313 Cr.P.C. and were confronted with the specific questions relating to the evidence brought on record by the prosecution. Most of the questions put were answered as being false or incorrect or that they are not aware. They also said that the recovery memos had been prepared at the police station and no recovery was made as alleged by the prosecution. In the end all the three accused have clearly stated that on the fateful day and time, from the side of the fields of the village, unknown assailants were trying to enter the village but they were challenged and chased by the villagers and in retaliation the assailants opened fire from their weapons and because of that firing, Rajesh and Binu died and Arvind got injured. The family members of Rajesh and Binu carried the dead bodies to their respective houses.
16. Further the defence examined four witnesses, who are as follows:-
DW-1, Parashu Ram himself entered the witness box and had taken the plea that he was not present at the place of occurrence and was on duty; that he was in Fatehgarh and had also operated his bank account by withdrawing money; DW-2, Vishal s/o Lalti Prasad deposed that Rajesh and Brijesh @ Binu died on account of injuries suffered by them in the fields due to indiscriminate firing by unknown assailants; DW-3, Head Constable, Krishna Pal Singh from the G.R.P. deposed about the G.D. entries of 16/17.08.2006 with regard to accused Parashu Ram and DW-4, Ram Kumar Samvedi, Special Assistant, State Bank of India, Farrukhabad deposed to prove the bank records regarding withdrawal of funds by Parashu Ram.
17. The Trial Judge after considering the material on record came to the conclusion that the prosecution has fully proved the charges so framed against all the accused beyond reasonable doubt. The Court below accordingly convicted the appellants as already recorded above vide judgement and order dated 30.03.2010. It is this judgement and order which is under challenge in the present appeals.
18. We have heard Sri Ambrish Kumar, learned counsel for the appellants and Sri Sunil Tripathi, Sri Prashant Kumar, Sri Arunendra Kumar Singh, learned A.G.A.'s, Sri Sudarshan Singh, Sri P.K. Shahi, Sri Sai Girdhar, learned Brief Holders for the State in all the three appeals.
19. Sri Ambrish Kumar, learned counsel for the appellants has drawn our attention to the evidence led by the prosecution both oral and documentary, to the statements made under Section 313 Cr.P.C. of the accused and also to the evidence of the four defence witnesses.
20. The submissions raised by the learned counsel for the appellants referring to the relevant parts of the evidence is to the following effect:
(i) The whole prosecution story, as set up, is highly improbable;
(ii) All the four witnesses of fact i.e. PW-1 to PW-4 were interested witnesses being inimical to the accused for different reasons, which fact has been admitted by them in their cross-examinations;
(iii) The evidence of the four witnesses of fact i.e. PW-1 to PW-4 do not stand the test of scrutiny as per the standards applicable for appreciating the testimony of an interested witness;
(iv) Even the testimony of the injured witness, PW-2 is not reliable and worthy of any credit. It deserves to be rejected;
(v) The recoveries made during the course of investigation were not proved and therefore liable to be rejected;
(vi) The evidence led by the prosecution in effect, supports the defence version of the occurrence, which is an encounter with unknown assailants, who entered the village at night from outside;
(vii) The place of occurrence as disclosed by the prosecution is also not correct in view of the clinching evidence brought on record.
(viii) The testimony of the witnesses of fact was neither truthful nor natural which could inspire any confidence, reliability or credibility so as to record conviction against the accused by placing reliance upon the same.
21. On the other hand, learned A.G.A. for the State submitted that the prosecution had fully established the charges beyond reasonable doubt against the appellants and as such the trial Court had rightly recorded the conviction. It was also submitted that in view of the enmity between the parties, there was every likelihood that the appellants have committed the crime. It was next submitted that defence theory was improbable and the defence witnesses had failed to discharge the burden of proving their innocence. It was also submitted that this was a case of direct evidence where, out of the four witnesses of fact, one was an injured witness and there was no reason for the injured witness to falsely implicate the appellants and spare the real assailants. On such submissions, learned A.G.A. submitted that the conviction be upheld and the appeal be dismissed.
22. The informant, Brijesh Kumar Singh (PW-1) supported the prosecution story. We are not repeating the prosecution story as stated in the first information report as the same has already been recorded above. We may only record here that PW-1 proved the written report submitted by him at the police station which was marked as (Ex. Ka-1). He also stated in his examination-in-chief that, the Deewan at the police station registered his complaint and provided him with a copy of the same; further the police accompanied him to the place of occurrence; got the inquest of both the deceased prepared and dispatched them for postmortem; that the Investigating Officer had recorded his statement at the police station; the injured Arvind and his daughter were medically examined at Vinod Dixit Hospital At Kannauj; that the accused Brijendra @ Hari was absconding from the village since the time of the occurrence; that the accused had created a terror in the village and was habitual of harassing and torturing the weak and innocent residents of the village.
23. The injured Arvind (PW-2) also supported the prosecution story. He further stated that after he was injured, the accused made their escape good by sneaking in their house. Rakesh had taken him and his daughter to Vinod Dixit Hospital where they were admitted; that while he was being taken to the Hospital at Kannauj, the three accused were firing from their weapons in the village; that after injuring him, the accused Ashok had fired at Brijesh @ Binu and accused Brijendra @ Hari had fired at Rajesh; that on account of the injuries, received by them, both died on the spot; that he did not see Ashok Kumar and Hari firing at Binu or Rajesh; that when he came to the house of Brijesh @ Binu then Lallu Singh told him about the murder of Brijesh @ Binu and Rajesh; that when Rajesh and Brijesh @ Binu were shot, he was still at his house; that Investigating Officer had recorded his statement and he had told everything to him. Lastly, he identified all the three accused who were present in the Court.
24. Jagdish, (PW-3) also supported the prosecution story. As per this witness all the three accused at around 05:30 pm came to his house from western side and at that time, he was sitting at his entrance along with his wife and son Brijesh @ Binu. He further stated that the accused had earlier gone to the house of Arvind where Parashu Ram tried to strangulate the daughter of Arvind saying that they would sacrifice her and when Arvind objected, Parashu Ram had fired at him causing injuries to Arvind; from the house of Arvind, they had walked up to his house and when his son Brijesh @ Binu objected, accused Ashok had fired at Binu who died on the spot; thereafter, the accused went up to their terrace and started firing; the shot fired from the gun of Brijendra @ Hari hit Rajesh who also died; the accused thereafter made good their escape towards west as a number of residents of the village had gathered; that he along with Brijesh Kumar Singh and Manohar had gone to the police station Tirwa where Brijesh Kumar Singh had written the complaint, thereafter police came to the village and did all the paper work; after preparing the inquest, the dead bodies were sent for postmortem; all the three accused are residents of his village, who are present in the Court. The Investigating Officer had recorded his statement. He lastly stated that accused Brijendra @ Hari and Parashu Ram served in the police department and were known for their muscle power and have always been creating nuisance in the village.
25. PW-4, Lallu Singh also supported the prosecution story. According to this witness on the fateful day at about 06:00 pm, he was fixing a handpump and at that time Sarvesh, Brijesh Kumar Singh (Advocate), Gajodhar, Mansingh and others were present; he first heard gunshot which attracted him to move towards south of the hand-pump and then the three accused rushed to their houses armed with fire-arm weapons; when Brijesh @ Binu objected, accused Ashok fired from his half gun at Brijesh @ Binu who was hit and died on the spot; thereafter, all the three accused climbed their terrace and started indiscriminate firing; that he along with others present also, went up to their terrace from where Rajesh objected and raised a voice against the accused then Brijendra @ Hari saying that he was an old enemy, aimed and fired at Rajesh from his double barrel gun which hit Rajesh and he died; that they brought down the dead body of Rajesh from the terrace; further under the pressure of the residents of the village, the accused came down from the terrace and escaped towards west. He further goes on to say that the fire which he had first heard, was the one which had caused injury to Arvind. which fact was told to him by Arvind and also that Parashu Ram had tried to strangulate his daughter in order to sacrifice her and upon raising objection, Parashu Ram fired at Arvind; that when Arvind had come to him he was already injured and was soaked with blood; he also identified the accused who were present in the Court and lastly stated that the Investigating Officer had made inquiries from him.
26. The entire occurrence as per the material on record is in three parts and at three different places i.e. (i) doorstep of the house of Arvind, (ii) front verandah of the house of Jagdish and (iii) terrace of the house of accused and Lalloo Singh: the first part is of strangulation of baby Neha (aged about 10 months) by accused Parashu Ram and causing gunshot injury to Arvind (PW-2) father of Kumari Neha by same accused i.e. Parashu Ram by using country-made gun; the second part is of causing fire-arm injury to Brijesh @ Binu and his resultant death on the spot by accused Ashok Kumar by using half gun in the presence of his father and mother; the third part is murder of Rajesh Kumar s/o Sri Ram Pal Singh by accused Brijendra @ Hari by using double barrel gun in the presence of the informant and others while the accused and Rajesh were at the terrace of their respective houses.
27. From the injury reports, the postmortem reports and the other police papers, it is evident that two persons namely Rajesh and Brijesh @ Binu died whereas one person i.e. Arvind (PW-1) received fire-arm injuries, baby Neha, daughter of Arvind, has received minor injuries on the neck. The above mentioned version has also been proved by the prosecution. The question is whether the accused, as alleged by the prosecution committed the crime or it was a false and concocted case implicating the accused on account of enmity of the prosecution witnesses with the accused. The defence had set up a case that Rajesh and Brijesh @ Binu died of gun-shot wound received at the hands of unknown assailants who were engaged in cross fire with the residents of the village in the fields outside the village abadi and from there their family members had carried the dead bodies to their respective houses and they were falsely shown to have been attacked by the accused at their houses. Even, Arvind (PW-1) had received injuries in the fields in the same cross fire. In so far as the little girl Neha is concerned, the injuries are abraded contusion which according to the Medical Officer could have been caused by some pressure or friction. In the above backdrop, we proceed to examine the evidence on record in particular the four witnesses of fact as to whether their testimony is natural, truthful and inspires confidence and that the prosecution has proved the charges beyond reasonable doubt which may compel us to affirm the conviction and the sentences, so awarded by the Court below.
28. In a criminal case it is the facts of each case and the appreciation of the evidence adduced in each case is what decides the fate of the case. There can be no blanket application of law with regard to the credibility of a witness account. In the present case, as defence have taken the plea that all the witnesses of fact were inimical towards the accused, their testimony requires to be thoroughly and carefully scrutinized. We will now deal with the same.
29. This Court while dealing with the manner in which the testimony of the eye-witnesses whether interested, inimical or otherwise is to be appreciated, has in detail referred to in its judgement passed by the Allahabad High Court, Lucknow Bench, Lucknow in Criminal Appeal No. 60 of 2001 (Anil Rastogi and 2 others v. State of U.P.), decided on 22.03.2018 which are as follows:-
"62. The Court is conscious of the legal position relating to the credibility to be attached to the eye-witnesses' account, the importance of motive set-up where there is direct evidence, the test to be applied for scrutinizing the testimony by interested witnesses and also to what extend some contradictions or aberrations are made in the statement of the witnesses can be ignored placing reliance on the testimony for recording conviction. Law on these point is well settled and to recapitulate it, reliance may be placed upon few illustrious judgments of SupremeCourt.
63. In Dalip Singh and Ors. vs. The State of Punjab reported in (1954) 1 SCR 145, it has been laid down by the Supreme Court that:-
"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 here 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."
64. The above decision has since been followed in Guli Chand and Ors. vs. State of Rajasthan, reported in 1974 CriLJ 331, in which Vadivelu Thevan vs. State of Madaras, reported in 1957 CriLJ 1000 was also relied upon.
65. The theory that the witness being a close relative and consequently, being a partisan witness, should not be relied upon has been repelled by Supreme Court as early as in Dalip Singh's case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witness. Speaking through Vivian Bose, J., it was observed by the Supreme Court that:
"We are unable to agree with the learned Judge of the High Court that the testimony of the two eyewitnesses required corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this court endeavoured to dispel in - Rameshwar v. The State of Rajasthan reported in [1952] S.C.R. 377at 390). We find, however, that it unfortunately still persists if not in the judgments of the Courts at any rate in the arrangement of counsel".
66. Again in Masalti and Ors. vs. State of U.P. reported in (1964) 8 SCR 133, the Supreme Court observed as follows (p.209-201 para 14):
"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses ..........
The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct".
67. To the same effect is the decision in State of Punjab vs. Jagir Singh reported in 1973 CriLJ 1589 and Lehna vs. State of Haryana reported in (2002) 1 SCR 377. In the case of Ravulappalli Kondaiah and Others vs. State of Andhra Pradesh reported in (1975) 3 SCC 752, and the Supreme Court observed about aspect of partisan / interest in following words:-
"We are unable to agree with the High Court that these contradictions were "trivial" and of no consequence whatever. We cannot overlook the fact that all the eye-witnesses were highly interested in the prosecution, and, at least two of them, namely, P.W. 1 and P.W. 4 were inimically disposed towards the appellants. While such witnesses never fail to denounce the real culprits,, they cannot be said to be absolutely immune from the tendency of roping in some innocent persons along with the guilty. Ira the present case, where the assailants did not spare even a woman and an old man who had interceded merely to save the deceased, the temptation to implicate, in addition to the actual assailants, their women and other relations would be real, it is in this context that these contradictions assume importance. As a matter of caution, therefore, the Court should seek some assurance of this interested evidence from independent source qua each of the accused".
68. In the case of Anil Phukan vs. State of Assam reported in (1993) 3 SCC 282, while recording status of prosecution witness, being relative of the deceased and an interested witness, the Supreme Court observed:-
"Of course, mere relationship with the deceased is no ground to discard his testimony, if it is otherwise found to be reliable and trustworthy. In the normal course of events, a close relation would be the last person to spare the real assailant of his uncle and implicate a false person. However, the possibility that he may also implicate some innocent person along with the real assailant cannot be ruled out and therefore, as a matter of prudence, we shall look for some independent corroboration of his testimony, to decide about the involvement of the appellant in the crime".
69. In the case of State of Punjab vs. Mukhtiar Singh and another reported in (1975) 4 SCC 590, the Supreme Court while dealing with the charge of murder observed that the prosecution witnesses being close relations were highly interested in the prosecution and it will not be safe to act upon his testimony without corroboration from independent sources against each of the accused.
70. In the case of Rizan and Ors. vs. State of Chhattisgarh, through The Chief Secretary, Govt. of Chhattisgarh, Raipur, Chhattisgarh reported in (2003) 2 SCC 661, the aspect of reliability of prosecution witnesses and test to be applied to weigh the evidence has been discussed in following manner:
"It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyses evidence to find out whether it is cogent and credible.
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Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounting to is that in such cases testimony may be disregarded and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called ' mandatory rule of evidence' (See Nisar Alli v. The State of Uttar Pradesh, reported in 1957 CriLJ 550 .
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The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected because witness was evidently speaking an untruth in (SIC) to be feared that administration of criminal justice would come to a dead- stop. Witnesses just cannot help in giving embroidery to a story, however, a true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Navata and Anr. v. The State of Madhya Pradesh, reported in 1972 CriLJ 1302 and also see Ugar Ahir and Ors. v. The State of Bihar, reported in AIR 1965 SC 27).
An attempt has to be made to, as noted above in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto (See (SIC) Ariel v. State of Madhya Pradesh AIR (SIC) SC 15 and also see Palaka Singh and Ors. v. The State of Punjab, reported in 1975 CriLJL 734 .
As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr., reported in 1981 CriLJ 1012. Normal discrepancies in evidence are those which are due to normal errors of observation. normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were highlighted recently in Krishna Mochi and Ors. v. State of Bihar etc. reported in 2002 CriLJ 2645 and Gangadhar Behera and Ors. v. State of Orissa, reported in 2003 CriLJ 41" .
71. The case of Noushad vs. State of Karnataka reported in (2015) 2 SCC 513 was based upon direct evidence, wherein according to the prosecution, the accused along with 40 others formed themselves into unlawful assembly with the common object of committing murder of the complainant and the deceased and went to their shop and committed trespass armed with deadly weapons lie swords, choppers, longs, clubs etc., with an intention to kill them and intentionally committed murder of the decussated by assaulting him all over his body with the use of deadly weapons possessed by them and that when the deceased in his injured condition tried to escape and run away towards the police station, he was further assaulted by the accused by chasing him down. The deceased ultimately fell down with multiple severe injuries in front of one Hardware shop. Thereafter, the accused alleged to have run away from the scene with the weapons in different vehicles in different directions. When the victim was immediately shifted to the Government Hospital, he was declared dead on examination by the doctors.
72. While dealing with the conviction affirmed by the Karnataka High Court, wherein the High Court had held that except minor variations, version given by the prosecution witnesses being eye-witnesses was believable, trustworthy, natural, the Supreme Court set-aside the judgment of the Karnataka High Court. The Supreme Court empahsised upon the inconsistencies in direct evidence and acquitted the accused-appellants and observed that the inconsisitencies in ocular testimony of eye-witnesses were glaring and their evidence was totally unreliable and unbelievable.
73. The Supreme Court, in A. Shankar vs. State of Karnataka, AIR 2011 SC 2302, has held as follows:
"17. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon".
74. In case of Badam Singh vs. State of M.P., reported in AIR 2004 SC 26, which was resting on direct evidence i.e., eye-witness account, the Supreme Court discussed the manner of appreciation of evidence and opined as follows:
"The mere fact that the witnesses are consistent in what they say is not a sure guarantee of their truthfulness. The witnesses are subjected to cross-examination to bring out facts which may persuade a Court to hold, that though consistent, their evidence is not acceptable for any other reason. If the Court comes to the conclusion that the conduct of the witnesses is such that it renders the case of the prosecution doubtful or incredible, or that their presence at the place of occurrence as eye witnesses is suspect, the Court may reject their evidence. That is why it is necessary for the High Court to critically scrutinize the evidence in some detail, it being the final court of fact. We have therefore gone through the entire evidence on record with the assistance of counsel for the parties".
75. In the case of Mehraj Singh (L/Nk.) vs State of U.P., reported in (1994) 5 SCC 188, it was held by the Supreme Court that the unnatural conduct of the eye-witness being widow of deceased during and after incident of murder as well as absence of blood-stains on her cloths may give interference that witness was not present.
76. The Supreme Court, in the case Ganesh Bhavan Patel and Ors. vs. State of Maharashtra, reported in (1978) 4 SCC 371, has held that the strange conduct of the prosecution witness claiming to be an eye-witness, which is inconsistence with the normal conduct of an eye-witness, may come in the way of accepting his story as true."
30. Brijesh Kumar Singh (PW-1) is the informant. In the first information report, he has not disclosed in specific terms that he had seen any part of the occurrence. He has not mentioned his physical position in the first information report. As per the prosecution case, the assailants first came to the house of Arvind, the injured (PW-2) then while crossing the house of Jagdish (PW-3) they shot at his son, Brijesh @ Binu and lastly from the terrace of their house, the assailants while making indiscriminate firing caused the death of Rajesh, brother of the informant. A reading of the FIR would only indicate that Brijesh Kumar Singh (PW-1) had informed the police about the incident without being an eye-witness. During trial even in examination-in-chief, PW-1 has not stated anything about his location. He even did not mention in his examination-in-chief that he also went up to the terrace of his house along with his brother, Rajesh (deceased).
31. It is only during cross-examination that PW-1 disclosed his actual physical position. According to PW-1 at the time of the first shot, he was at the doorstep of his house where the hand-pump was being installed. He does not state that he had seen Parashu Ram either causing injury to baby Neha or causing fire-arm injury to PW-2, Arvind.
32. He however states that he had seen the assault by Ashok Kumar on Brijesh @ Binu and then further says that he had gone up to his terrace along with his brother, Rajesh and had seen Brijendra @ Hari aiming and firing at his brother, Rajesh. He was extensively cross-examined with regard to the location of his house, house of PW-3 Jagdish, father of deceased, Brijesh @ Binu and also the house of Arvind (PW-2), the injured. PW-1 admits that the site-plan (Ext. Ka-15) was prepared by the Investigating Officer on the next day of the incident on his pointing out. The site-plan (Ex. Ka-15) has been carefully examined by us. 'A' is the place from where the assailants were making indiscriminate firing from terrace of their house. It also depicts the house of the accused to be in the centre of the entire incident. 3-4 houses and one pathway is across the house of Jagdish (PW-3) where the murder of Brijesh @ Binu, deceased is said to have taken place and is marked as 'A-1'. 'A-1' is in south eastern direction from 'A' and distance is about 20 mtrs. 'A-3' is the place of Arvind, injured (PW-2) and is almost south of place 'A'. 'A-2', is the house of informant and Lallu Singh his neighbour (PW-4). 'A-2' is towards north of 'A' and distance from 'A' to 'A-2' is 50 mtrs. If the informant was at his house or even in front of it where the hand-pump was being installed (although the same is not shown in the site-plan) but under no circumstances, informant, PW-1 could have seen the incident taking place at 'A-1' as there were number of houses in between. Further, another improbability which is evident from the site-plan is that in between the house of the informant 'A-2' and the accused 'A' there were four houses and it would be difficult to have a clear visibility and view in between the two places 'A' and 'A-2'.
33. Another interesting aspect is that the assailants/accused first came to the house of Arvind at 'A-3' that is in the extreme south then they walked north and then east to the house of Jagdish, PW-3 at 'A-1' and then came up to their house at 'A' in the center where was the occasion for Rajesh or the informant to have crossed or come across the accused so as to start opposing them or raising objection. The site-plan clears a lot of doubts which admittedly was prepared at the pointing out of the informant, PW-1. PW-1 having improved his case from time to time and having not disclosed his location in the first information report or even in the examination-in-chief, when confronted with the question to elicit as to how he had witnessed the incidents, he started making stories that he was at his doorstep and then went up to the terrace along with his brother. Another aspect to be noted is that although Rajesh went up to the terrace of his house but was hit when he was on the terrace of his neighbour, Lallu Singh, PW-4.
34. For all the reasons recorded above, the reliability of the evidence of PW-1 can only be limited to lodging the first information report but not of an eye-witness of any of the three parts of the incident.
35. In so far as the first part is concerned, let us test the probability of the story and the evidence adduced by the prosecution. It is said that Prashu Ram along with Ashok and Brijendra @ Hari came at the house of Arvind. Accused- Parashu Ram picked up his 10 months old daughter and tried to strangulate her in front of Arvind and his wife. Parashu Ram is said to have stated that he wanted to sacrifice the infant Neha. Sacrificing the life of a child at the altar is not a normally heard of practice. It is practiced for religious beliefs or by Tantriks to derive extra power and strength and not by normal human beings. In the present case, it is not for any religious belief or by a Tantrik that the life of infant Neha was to be sacrificed. None of the four witnesses have stated that Parashu Ram was a Tantrik or a religious Guru who practiced child infanticide at the altar. It is also not stated by any of the four witnesses of fact that this was a practice prevalent in their village. In fact, it has been specifically denied during cross-examination by all of the four witnesses of fact that there was no such practice prevalent in their village before or after the incident.
36. Thus, the very story that Parashu Ram all of a sudden appeared at the house of Arvind and picked up the infant Neha to strangulate her for the purposes of sacrificing her at the altar appears to be very strange to accept. In continuation, what is to be noticed as improbable is that if the three appellants had appeared at the house of Arvind to take away his daughter for sacrificing her life, Arvind and his wife who were unarmed could not have stopped them from taking that little girl but, on objection by Arvind Kumar totally unarmed, they shot at him and left the girl behind, does not seem to be probable with the intention or motive as suggested by the prosecution. It is also relevant to note here that the incident in so far as it took place at the house of Arvind which is the first part has only been seen by Arvind and his wife, the other three witnesses of fact i.e. PW-1 Brijesh Kumar Singh, PW-3, Jagdish and PW-4 Lallu Singh have only stated about this incident upon hearsay i.e. on Arvind informing them. They have not stated that they were present at the house of Arvind rather they have said that Arvind informed them later on. Wife of Arvind has not been examined by the prosecution. Thus, in so far as the first part of the occurrence is concerned, the only evidence led by the prosecution is that of the injured, Arvind.
37. The injured Arvind (PW-2) specifically stated in his cross-examination that there was enmity between him and Parashu Ram. The dispute relates to a piece of abadi land. He also stated in his cross-examination that Parashu Ram with whom he had old enmity used to tie his animals on his land which Parashu Ram had forcibly taken possession of and this used to irk him. In his cross-examination he further states that he did not lodge any report nor did he made any written complaint. He further states that he went to the hospital for treatment. It is specifically stated that no blood had spilled on the floor. His shirt had blood stains but the same was not taken into possession either by the Doctor or the police. He also states that neither any blank cartridge nor any pellets were found at the place at his doorstep. He also states that no pellet was embedded either in the wall or in the door of the house. In the end, he was suggested that it was an attack by unknown assailants after sunset who were chased by the residents of the village and in that cross firing he got injured along with Rajesh and Binu who succumbed to their injuries, which he denied. It was also suggested that Rajesh and Binu had been carried from the place of occurrence outside the village to their respective houses which also he denied. He was also suggested that on account of enmity with Parashu Ram and his family members, he had falsely implicated them which also he denied.
38. Although, the testimony of an injured witness is to be attached great credibility and it is difficult to brush aside his testimony. This principle is for the reason that normally an injured witness would not implicate an innocent person and allow the actual assailants to go Scot-free. But, at the same time in a given case where the testimony of an injured witness appears to the Court to be not worthy of reliance, strong reasons have to be recorded. It can be brushed aside only for very strong reasons. In the present case in view of the discussions made while dealing with the evidence of PW-2 the injured, we are unable to accept his testimony as worthy of credit.
39. Now coming to the second part of the incident that is of causing fire-arm injury to Brijesh @ Binu by the accused- Ashok Kumar and his resultant death on the spot. PW-3, Jagdish is the father of the deceased Brijesh @ Binu. According to his examination-in-chief, he has stated that on 17.08.2006 in the evening he was sitting at his door-step along with his wife and his son Brijesh @ Binu. At about 05:30 P.M. the accused Parashu Ram, Ashok Kumar and Brijendra @ Hari came duly armed with fire-arm weapons came to his house from the west. Before that the accused had gone at the door-step of Arvind, after trying to strangulate the daughter of Arvind and causing fire-arm injury to Arvind, the accused walked to his place. At this juncture his son, Brijesh @ Binu opposed them which instigated the accused Ashok who fired at his son, resulting in his death on the spot. He further states that thereafter the accused went up to the terrace of their house and from there, started indiscriminate firing. Rajesh got hit by a bullet fired by Brijendra @ Hari and resultantly died. When the residents of the village collected the accused left the place.
40. The probability of the story as deposed by PW-3, Jagdish, who is the eyewitness of the murder of his son, Brijesh @ Binu also does not inspire confidence. According to him, while he was sitting with his family members, the accused crossed his house and when his son opposed the accused, Ashok fired at him. There is no description at all as to whether his son Brijesh @ Binu made verbal remarks or tried to physically stop them in fact there could not have been any such opposition inasmuch as if the story goes to be correct, the accused had already committed the alleged crime of causing injuries to Arvind and his dauther Neha and they were quietly moving on their way out. It is not the case of the PW-3 that they came charging to his house with a pre-planned intention of assaulting his son but it was upon his son opposing them, that one of the accused fired. No description of the opposition by the deceased has been given by this witness. Consequently we have no hesitation in discarding the testimony of this witness.
41. In his cross-examination, PW-3 has admitted enmity with the accused Parashu Ram and Ashok Kumar. He has admitted the factum regarding criminal cases being lodged by both the parties against each other. Pintu son of Parashu Ram accused had lodged a complaint against son of PW-3, Nand Kishore and 2-3 days' later PW-3 had lodged a report against Rakesh son of Ashok-accused. In his cross-examination, he does not deny rather pleads ignorance that Devi Dayal father of accused Brijendra @ Hari had lodged the criminal complaints against PW-3 during the period 1986 to 1990. He also admits that he was not on talking terms or had any kind of relations with the three accused- Parashu Ram, Brijendra @ Hari and Ashok.
42. Further, it would be interesting to note that the conduct of PW-3 and his wife is also very strange. Neither he nor his wife picked up his son or embraced him or tried to console him. He further admits that the clothes worn by him and his wife did not receive any bloodstains. He further states that where his son had been shot at, no blood had spilled. He also states that neither any pellets had embedded in the wall or door of his house nor were they lying on the floor. The same compels us to disbelieve his testimony as it is highly unnatural for a father to behave in that way.
43. PW-3 is one of the eyewitness of the murder of Brijesh @ Binu. His wife, mother of deceased-Brijesh @ Binu has not been examined. Upon overall consideration of the statement of PW-3, his testimony does not inspire any confidence so as to place reliance on the same. It is neither truthful nor natural. Accordingly, we discard the same.
44. Coming to the third part of the incident relating to murder of Rajesh, son of Ram Pal, the prosecution has produced two eye-witnesses namely Brijesh Kumar Singh (PW-1), the informant who is also the brother of the deceased and PW-4, Lallu Singh who is neighbour of deceased- Rajesh.
45. In so far as testimony of PW-1 is concerned, the same has already been discussed in detail in the earlier part and has been found to be unworthy of reliance as an eye-witness account.
46. The other eye-witness, PW-4 Lallu Singh is the neighbour of deceased Rajesh. According to PW-4, he was repairing his handpump and few others were present there namely, Sarvesh, Brijesh Kumar Singh, Gajodhar and Mansingh. He first heard the gun shot and when he moved in the direction from where the sound of the gun-shot had come, he saw Brijendra @ Hari, Ashok Kumar and Parashu Ram closing in towards their house. They were armed with fire-arm weapons. Upon opposition being raised by Brijesh @ Binu, Ashok fired at him resulting in the death of Brijesh @ Binu. Thereafter, the three accused ran up to the terrace and started indiscriminate firing. Upon this, he and others also went up to their terrace, Rajesh tried to stop the accused from the terrace which annoyed Brijesh @ Hari who aimed his gun at Rajesh and exhorting that he was an old enemy, fired at him which hit Rajesh and he died. He further states that he along with others carried Rajesh downstairs. Here again, it would be worthwhile to mention that no description was given by this witness as to how and in what manner Rajesh tried to stop the accused or objected to their conduct. PW-4 is completely silent on this aspect. The manner of occurrence thus remains unexplained.
47. PW-4 admits in his cross-examination about his enmity with the accused Parashu Ram on account of statement given by him to the police in the case of death of one Murli of his village. He further admits that Radha Krishna is cousin of the accused and prior to the incident they had a quarrel with him and his father had also lodged a report with the police. He further states that one lady Sadhna, daughter-in-law of Murli had lodged a complaint under Section 376 IPC against him on the instigation of Parashu Ram. He was also suggested that he had criminal antecedents which he politely denied but in the cross-examination at every place, the criminal cases pending against him were admitted.
48. Again, we find that the third part of the story was also quite improbable. Once the accused had climbed up their terrace and were making indiscriminate firing it would not only be wise but rather foolish for the neighbours to climb up their terrace and expose themselves to become a victim of such indiscriminate firing. Even a man of prudence would hide himself and rather sit inside his house to protect and save himself, rather than climb up the stairs and become vulnerable. Further, the enmity with the accused being admitted by PW-4, false implication could be a possibility.
49. Vishram Singh (PW-7), Senior Sub-Inspector accompanying the Investigating Officer and who had prepared the relevant police papers has clearly stated that no blood was found at any of the three places where the incidents are alleged to have occurred. He has also stated that there was no trail of blood from the terrace through the stairs to the ground-floor where the dead body of deceased- Rajesh was kept.
50. The absence of blood from the places where incidents are said to have occurred is admitted to all the witnesses of fact. Even the Investigating Officer also did not find any blood from the place of occurrence. The same creates a doubt in the prosecution story. Rather it compels us to believe the defence version that the actual place of occurrence were the agricultural fields from where the dead bodies were carried to the houses of the deceased.
51. Although, the defence produced four witnesses in support of the alibi of accused Parshu Ram and also with regard to the defence version of unknown assailants trying to enter the village who were chased by the villagers and in retaliation, the unknown assailants had opened fire and it is in firing by the unknown assailants that Rajesh and Brijesh @ Binu had died and P.W.-2, Arvind had suffered gun-shot injuries. However, in view of the evaluation of the prosecution witnesses as made herein above even without taking aid of the defence witnesses, we are convinced that the prosecution had miserably failed to bring home the charges. As such, we are not dealing with the four defence witnesses in detail, although their statements have been briefly referred to in the earlier part of this order.
52. The main incident of murder and attempt to murder by the appellants having become doubtful the recovery of fire arms and the conviction under Section 25/27 Arms Act would also lose its credibility.
53. An overall analysis of the evidence of the witnesses of fact can be summarised as follows:-
(i) The probability of the prosecution case being true appears to be very remote.
(ii) The Prosecution has failed to justify the sacrificing of the life of daughter of injured Arvind by accused Parashu Ram.
(iii) All the four witnesses of fact bore enmity with the accused as admitted in their cross-examination.
(iv) The prosecution has very cleverly assigned role of assault to the 3 accused connecting them with the injured and the two deceased by givng specific role. Although all the three accused were carrying fire-arm weapons but the use is specific at every stage. Arvind, the injured (PW-2) is said to have been fired at by Parashuram, deceased Brijesh @ Binu, has been shot at by accused Ashok and lastly deceased Rajesh has alleged to have been shot at by accused Brjendra @ Hari.
(v) None of the witnesses of fact inspire confidence in order to place reliance on their testimony.
54. As already recorded above, the story as set up by the prosecution, is highly improbable. The witnesses produced were not present at the place of occurrence nor they had seen the commission of the crime. All the 4 witnesses of fact were inimical to the accused. The prosecution evidence does not inspire confidence so as to place reliance upon the same and record conviction. Upon testing the credibility, truthfulness and natural tenor of the witnesses of fact, we are unable to place any confidence on the same. The manner of description of the occurrence is extremely poor rather it has not been disclosed at all by the eye-witnesses. It will be helpful to quote the following paragraphs from the judgment in the case of Badri & others v. State of U.P. in Criminal Appeal No. 389 of 2011 decided on 04.09.2018: "It is always useful to remember and apply the old adage of criminal investigation, "Circumstances cannot lie, witnesses can and do." The task before the court is to compare and arrange the two with unbiased testimony after deleting all elements of artful deception, mistake and errors. To derive shifted truthful evidence in the ultimate analysis is what enables the court to hold fast for appraisal."
55. The defence suggestion that it was an intrusion in the village by unknown assailants to which the villagers had retaliated and in the cross fire, two persons died and one got injured, may be the actual incident. Absence of any blood at the two places from where the bodies are said to have been recovered and where the injured was assaulted, the absence of any recovery of pellets, the absence of any pellets being embedded in the wall and or door of the house and the conduct of the parents of deceased, Brijesh @ Binu, when considered cumulatively, make us believe that the defence version is the true version of the occurrence.
56. In view of the above discussion and our finding to the effect that the witnesses of fact have not inspired any confidence by their testimony to place reliance upon the same, we do not deem it necessary to deal with each of the formal witnesses examined by the prosecution. As already recorded above the formal witnesses have only proved that two persons died and two persons received injuries. When did the incident take place, where did the incident take place, why did the incident take place and who committed the crime, can only be ascertained from the testimony of the witnesses of fact especially in the present case which is of direct evidence. The witnesses of fact having failed to inspire confidence, the appellants' conviction by the trial court and the consequential sentence awarded to them do not deserve to be maintained.
57. For all the reasons recorded above, we are unable to uphold the conviction and sentence recorded by the Trial Judge. All the three appeals succeed and are accordingly allowed. The conviction and sentence recorded by the Trial Judge is set aside. The appellants are acquitted of all the charges. The appellant Parashu Ram is on bail. His bail bonds are cancelled and the sureties are discharged. Appellants Ashok Kumar and Bijendra @ Hari are in jail. They shall be released forthwith if not wanted in any other case.
Order Date :- 14.2.2019 P Kesari [Rajeev Misra, J.] [Vikram Nath, J.]