Allahabad High Court
Dharam Veer Alias Kaiya And Others vs State Of U.P. on 22 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 1400, AIRONLINE 2019 ALL 1400 2019 (6) ALJ 570, 2019 (6) ALJ 570
Bench: Sudhir Agarwal, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on : 06.03.2019 Delivered on : 22.08.2019 Court No. - 34 Case :- CRIMINAL APPEAL No. - 4281 of 2002 Appellant :- Dharam Veer @ Kaiya, Radhey Shyam & Choiya @ Khajan Singh Respondent :- State Of U.P. Counsel for Appellant :- K.K. Dwivedi,B.K.Solanki,R.P. Dwivedi,Yogesh Srivastava, Noor Mohammad. Counsel for Respondent :- A.G.A.,Hemendra Pratap Singh & Case :- JAIL APPEAL No. - 6316 of 2003 Appellant :- Radhey Respondent :- State Of U.P. Counsel for Appellant :- From Jail,Somya Chaturvedi A.C. Counsel for Respondent :- A.G.A. Hon'ble Sudhir Agarwal,J.
Hon'ble Rajendra Kumar-IV,J.
(Delivered by Rajendra Kumar-IV,J.)
1. Both the aforesaid appeals arise out of a common judgement and order dated 03.09.2002 passed by Sri Vijay Kumar, Additional Sessions Judge, Hathras in Session Trial No. 169 of 2001 (State versus Dharamveer @ Kaiya and others), Police Station Shahpau, District Hathras convicting all the accused-appellants under Sections 302 read with 34 IPC and sentencing each of them to undergo rigorous imprisonment for life and also to pay a fine of Rs.2000/- each. In the event of default of payment of fine, they have to undergo six months additional rigorous imprisonment.
2. From the record it appears that initially Criminal Appeal No.4281 of 2002 was filed under Section 374(2) Cr.P.C. by all the three accused-appellants, namely, Dharam Veer @ Kaiya, Radhey Shyam and Choiya @ Khajan Singh, which was admitted by this Court on 01.10.2002. Subsequently Radhey son of Gauri Shanker Pal also filed Jail Appeal No.6316 of 2003, under Section 383 Cr.P.C., through Senior Superintendent Central Jail, Agra which was admitted on 09.12.2003. It is also on record that vide order dated 30.03.2016 this Court granted bail to Dharam Veer @ Kaiya appellant in Criminal Appeal No.4281 of 2002 and Radhey (mentioned as appellant no.2 in Criminal Appeal No.4281 of 2002 and also appellant in Jail Appeal No.6316 of 2003). The prayer for bail of appellant Choiya @ Khajan Singh was declined.
3. Brief facts giving rise to the present appeal may be stated as under:-
4. A written report Ex.Ka-1 dated 15.04.2000 was presented by PW-1 Vinod Kumar, before Station Officer of Police Station Shahpau, District Hathras, stating that accused-appellants Kaiya @ Dharamveer, Radhey and Choiya @ Khajan Singh (brother-in-law of Tula Ram, resident of village Samai) were creating nuisance in drunken state after taking liquor. Chandrapal Sharma uncle of PW-1, Informant, tried to prevent them whereupon the aforesaid three persons hurled abuses and also pelted stones. Certain persons intervened and got the matter subsided. In the night intervening 14/15 April, 2000 at about 2:00 AM, the aforesaid accused-appellants indulged in filthy abuses after consuming liquor. Uncle of PW-1 when resisted, they got inclined to fight. In the meantime, villagers approached there and took them away from the scene of occurrence persuading and pushing them. While departing, accused-appellants were saying that on the occasion of Holi also he (uncle of Informant) had quarrelled, so they will not spare him. At about 2:30 AM, on 14/15 April, 2000 the aforesaid three accused persons reached the Baithak of Chandrapal Sharma. Kaiya and Radhey, each, had a knife with them while Choiya had a Danda. Suddenly, all of them assaulted Chandrapal Sharma with their respective weapons. Hearing his shrieks, Informant, his wife Gayatri, Mukesh son of deceased Chandrapal Sharma and one Puran Chandra Sharma reached the Baithak. Seeing them, the three accused-appellants fled away from the scene. Chandrapal Sharma was groaning badly and while making arrangement for carrying him to the Hospital, he breathed his last.
5. On the basis of said report, PW-8 Head Constable Nasir Khan prepared chick report Ex.Ka-13 and made an entry of the same in General Diary (hereinafter referred to as "GD") at report No.7 at 6:45 AM on 15.04.2000. A copy of relevant GD entry as Ex.Ka-14 is on record. Investigation of case was undertaken by PW-7 SI Ashok Kumar Singh, the then Station Officer of Police Station Shahpau, who visited the spot and prepared inquest Ex.Ka-2 in respect of deceased Chandrapal Sharma in his own handwriting. He prepared site plan Ex.Ka-6; recovery memo Ex.Ka-3 in respect of articles found in the pocket of deceased and recovery memo Ex.Ka-4 pertaining to blood stained shirt. He also recorded statements of Informant and other witnesses of village. Subsequently, he sent the clothes and articles recovered from the person of deceased for Forensic Examination.
6. Autopsy on the dead body of the deceased Chandrapal Sharma was conducted by PW-6, Dr. Nepal Singh, on 15.04.2000 at about 4:20 PM. According to him, deceased was aged about 50 years, and at the time of post-mortem about half a day had passed. On External examination, he noticed that rigor mortis was present all over the body and eyes were closed. He found following ante-mortem injuries on the body of the deceased:-
1. Lacerated wound 4cm x 1cm cartilage deep, front and upper part of left ear.
2. Lacerated wound 3cm x 1cm x bone deep on left side far head just lateral to left forehead just lateral to left eyebrow, surrounded by swelling 8cm x 4cm, bone underneath was fractured.
3. Incised wound 1cm x 0.5cm x muscle deep on left side forehead, just above left eyebrow.
4. Incised wound 3cm x 1cm x bone cavity deep on left side head 4cm above behind left eyebrow. Underneath bone fractured.
5. Incised wound 3cm x 0.5cm x bone deep on left side head, 2cm away behind from injury no. 4.
6. Lacerated wound 0.5cm x 0.3cm x muscle deep on middle of left eyebrow.
7. Traumatic swelling 5cm x 3cm on right eye.
7. On internal examination frontal and parietal bone of head was found fractured; membranes were lacerated; brain was lacerated with haematoma; both lungs were congested; right side chamber of heart was full and left side empty; stomach contained 100 gm food; gallbladder was congested and half full; spleen and kidneys were congested; urinary bladder was empty. In the opinion of doctor, death was caused due to coma as a result of head injury. Doctor prepared post-mortem report Ex.Ka-5.
8. After conclusion of investigation, PW-7 SI Ashok Kumar Singh submitted charge sheet Ex.Ka-12 in Court against all the three accused-appellants under Section 302 IPC.
9. Cognizance of the offence was taken by Chief Judicial Magistrate, Hathras on 14.06.2006. Since the case was exclusively triable by Court of Sessions, the same was committed by Chief Judicial Magistrate, Hathras to the Court of Sessions for trial on 21.07.2001, where it was registered as Sessions Trial No. 169 of 2001. Subsequently Sessions Trial was transferred to the Court of Additional Sessions Judge, Hathras, who framed charge against the accused-appellants Kaiya @ Dharamveer, Radhey and Choiya on 01.11.2001 as under:
"मै विजय कुमार, अपर सत्र न्यायाधीश, हाथरस आप कईया उर्फ धर्मवीर, राधे व चोइया पर निम्न आरोप लगाता हूँ-
प्रथम- यह कि दिनांक 14/15.4.2000 की रात्रि में समय करीब दो बजे स्थान बहद ग्राम रसगवां अंतर्गत थाना सहपऊ जनपद हाथरस की सीमा में आप लोग ने अपने सामान्य आश्य को अग्रसारित करते हुये वादी मुकदमा विनोद कुमार के चाचा चन्द्र पाल पर छुरा, चाकू व डंडो से हमला करके घायल किया जिससे बाद में चन्द्र पाल की मृत्यु हो गयी। इस प्रकार आपने धारा 302/34 भारतीय दंड संहिता के अंतर्गत दंडनीय अपराध कारित किया जो मेरे प्रसंज्ञान में है।
और मै एतद् द्वारा आपको निर्देश दिया जाता है कि आपका विचारण उक्त आरोप में मेरे न्यायालय द्वारा किया जायेगा।"
"I Vijay Kumar, Additional Sessions Judge, Hathras charge you Kaiya @ Dharamveer, Radhey and Choiya as follows:
First: That in the night intervening 14/15 April, 2000 at about 2:00 AM in furtherance of your common intention you caused death of Chandrapal uncle of Vinod Kumar by inflicting with Knives and Danda in the Baithak of deceased Chandrapal Sharma wherein the territory of village Rashgawan under Police Station Sahpau, District Hathras. Thus you have committed an offence punishable under Section 302 read with 34 IPC and within the cognizance of this Court.
I hereby direct you be tried for the aforesaid charge by this Court." (English Translation by Court)
10. The accused pleaded not guilty and claimed trial.
11. To substantiate its case, prosecution examined as many as eight witnesses, out of whom PWs-1, 2 and 3 are witnesses of fact. Rest are formal witnesses of Police and Health Department. PW-1 Vinod Kumar is nephew of deceased Chandrapal Sharma and PW-3 Mukesh Kumar is deceased son, PW-2 Puran Chandra Sharma is cousin of deceased and resident of same village. They have given factual account of the incident.
12. PW-4 SI Shailendra Singh is a witness of inquest Ex.Ka-2, recovery memo Ex.Ka-3 of articles and clothes of deceased and recovery memo Ex.Ka-4 in respect of blood stained shirt. He has also proved material exhibits i.e. Ex-1 underwear, Ex-2 Banyan and Ex-3 shirt of Choiya accused. PW-5 Constable Jabaran Singh had taken the dead body of deceased along with other Constable Harendra Singh to the District Hospital for post-mortem. PW-6, Dr. Nepal Singh had conducted autopsy on the dead body of Chandrapal Sharma and has proved post-mortem report Ex.Ka-5. PW-7 SI Ashok Kumar Singh is the Investigating Officer and has proved Panchayatnama Ex.Ka-2, site plan Ex.Ka-6, recovery memo Ex.Ka-3 in respect of articles recovered from the pocket of deceased, recovery memo Ex.Ka-4 in respect of shirt of Choiya sealed by him and charge sheet Ex.Ka-12. PW-8 Head Constable Nasir Khan appeared before the Trial Court to prove chick FIR Ex.Ka-13 and copy of GD entry Ex.Ka-14.
13. On closure of prosecution evidence, statements of accused-appellants under Section 313 Cr.PC. was recorded. All of them have stated that they have been falsely implicated due to enmity and the entire prosecution evidence as well as investigation is false. They did not adduce any evidence in defence.
14. At the stage of arguments Trial Court found that in charge dated 01.11.2001 time of incident has been mentioned at night 02:00 hours in place of 02:30 hours at night, therefore, Court framed amended charge against the accused-appellants on 29.08.2009. Since entire evidence of both the parties had already been adduced and no party desired to produce any other evidence or to cross examine the witness, therefore, Trial Court proceeded the trial on previous evidence.
15. On appraisal of evidence on record and after hearing learned state counsel and counsel for accused, learned Trial Judge recorded verdict of conviction and sentence against all the accused-appellants, as stated above.
16. Feeling aggrieved with the impugned judgment and order dated 03.09.2002, accused-appellants are before this Court through Jail appeal No. 6316 of 2003 and Criminal appeal No. 4281 of 2002, challenging their conviction and sentence.
17. We have heard Ms. Somya Chaturvedi, Amicus Curiae for appellant in Jail Appeal No. 6316 of 2003 as well as Sri Noor Mohammad, learned Counsel for appellants in Criminal appeal No. 4281 of 2002 and Sri Syed Ali Murtuza, learned AGA for State at length and have gone through the record carefully with the valuable assistance of learned Counsel for parties.
18. Learned Counsel appearing for appellants has challenged conviction and sentence of accused-appellants, advancing their submissions, in the following manners :-
(i) There is no motive to accused-appellants to commit the present crime.
(ii) There is no independent witness of prosecution in support of its case.
(iii) All the three witnesses are relatives of deceased, therefore, their evidence cannot be trustworthy.
(iv) Smt. Gayatri, named in FIR, has not been produced from the side of prosecution in support of its case, therefore, presumption under Section 114 (G) of Indian Evidence Act goes against prosecution.
(v) There are many major contradictions which affect the root of case and accused persons are entitled to benefit of doubt.
(vi) Medical evidence does not go with the prosecution version.
(vii) Trial Court has not rightly convicted accused-appellants and prosecution has failed to prove its case beyond reasonable doubt. Accused-appellants are liable to be acquitted.
19. Per contra learned AGA opposed submissions and urged that PWs-1 to 3 are witnesses of fact, who had supported prosecution case; witnesses are natural and reliable; and medical evidence is totally compatible with the ocular evidence. The weapons involved in the offence have been recovered by Investigating Officer on pointing out of accused-appellants.
20. Although time, date, place and nature of injuries found on the person of deceased could not be disputed from the side of accused-appellants but according to learned counsel for appellants, they are not responsible for committing murder of Chandrapal Sharma. Thus only the question up for consideration is, "whether accused-appellants committed murder of Chandrapal Sharma by inflicting knife and danda on his body and Trial Court has rightly convicted them or not?"
21. We now proceed to consider rival submissions on merit. It will be appropriate to briefly consider the evidence of prosecution as well as defence available on record.
22. PW-1 Vinod Kumar, nephew of deceased Chandrapal, supported prosecution case and deposed that on the occasion of Holi festival accused-appellants namely, Dharam Veer @ Kaiya, Radhey Shyam and Choiya @ Khajan Singh were creating nuisance after taking liquor. His (PW-1 Vinok Kumar) uncle Chandrapal Sharma tried to prevent them where upon all the three accused pelted stones and hurdled abuses, certain persons intervened and got matter subsided. Thereafter in the intervening night on 14/15 April, 2000 at about 02:00 AM all the three accused started abusing in filthy languages after consuming liquor. When his uncle (victim) resisted them, they got inclined to fight. In the meantime, villagers approached there and took them away from the spot. While departing there from accused-appellants were saying that on the occasion of Holi he (victim) had quarrelled. After half an hour at about 02:30 AM accused persons reached the Baithak of Chandrapal Sharma where he (victim) slept and started beating him with their respective weapons. On hearing his shriek, Informant himself, his wife Gyatari Devi, PW-2 Puran Chandra and PW-3 Mukesh Kumar reached the Baithak where accused persons were beating his uncle Chandrapal Sharma (victim). He further deposed that accused-appellant Dharam Veer @ Kaiya and Radhay Shyam had knife (chura) while Choiya @ Khajan Singh was having a danda. On seeing them all the accused persons ran away from spot, victim was groaning badly, while making arrangement for carrying victim to Hospital he succumbed to injury. He has further deposed that a written report Ex.Ka-1 regarding the incidence was presented by him.
23. PW-2 Puran Chandra Sharma, cousin of deceased Chandrapal Sharma, deposed that in the intervening night of 14/15 April, 2000 at about 02:30 AM on hearing the shriek of Chandrapal Sharma came out of his house, PW-1Vinod, his wife Gyatri Devi and PW-3 Mukesh met him in the way while going towards the Baithak of Chandrapal Sharma. They saw that accused-appellants were assaulting victim with their respective weapons. Accused-appellants Radhey Shyam and Dharam Veer @ Kaiya were having knife (chura) and accused-appellant Choiya @ Khajan Singh was having danda in their hand. On seeing them accused-appellants ran away from spot. Chandrapal Sharma received serious injuries and succumbed to death. Before this incident, at about 02:00 AM in the night accused-appellants had a quarrell and abused after taking liquor. Accused-appellants extended threat Chandrapal Sharma to see him. At that time Vinod and his wife were present there.
24. PW-3 Mukesh Kumar, happens to be son of deceased deposed that on the occasion of Holi festival, accused-appellants, after taking liquor were abusing then he (PW-3) himself, Vinod, his wife Gayatri and other villagers have subsided the matter due to festival. In the intervening night 14/15 April, 2000 at about 02:00 AM all three accused-appellants were abusing in filthy languages in front of Baithak whereupon his father objected them. After half an hour at about 02:30 AM in the night, he heard shriek of his father, immediately rushed to Baithak, Vinod and Puran Chandra also came there, they saw that accused-appellants were assaulting his father with their respective weapons. On seeing them, accused-appellants ran away from spot towards Pipal Wali Gali, his father was groaning badly. While making arrangement of vehicle to Hospital his father succumbed to death.
25. PWs-1, 2 and 3 withstood lengthy cross-examination by defence but nothing material could be brought so as to disbelieve their statements on oath. PWs-1, 2 and 3 established that accused persons assaulted victim Chandrapal Sharma with their respective weapons and caused serious injuries to him due to which he succumbed to death.
26. So far as argument made by learned Amicus Curiae regarding the motive is concerned, we are not impressed with the submission advanced by learned Amicus Curiae for the reasons that it is well settled that where direct evidence is worthy, it can be believed, then motive does not carry much weight. It is also notable that mind set of accused persons differs from each other. Thus merely because there was no strong motive to commit offence, prosecution case cannot be disbelieved.
27. In Lokesh Shivakumar v. State of Karnataka, (2012) 3 SCC 196, Court held as under :-
"As regards motive, it is well established that if the prosecution case is fully established by reliable ocular evidence coupled with medical evidence, the issue of motive looses practically all relevance. In this case, we find the ocular evidence led in support of the prosecution case wholly reliable and see no reason to discard it."
(emphasis added)
28. So far as the question of relative witness and non-examination of any independent witness is concerned, we are not impressed with the submissions of learned Counsel for appellants for the reasons that it is often seen that in heinous offences like murder, no villagers or independent witness come forward to give evidence in support of prosecution against accused-appellants due to fear of evil.
29. So far as relative witness is concerned, it is now well settled law laid down in Dalip Singh v. State of Punjab, AIR,1953, SC 364. Where Court has held as under :-
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause' for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
30. In Dharnidhar v. State of UP (2010) 7 SCC 759, Court has observed as follows :-
"There is no hard and fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In the case of Jayabalan v. U.T. of Pondicherry (2010) 1 SCC 199, this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim"
31. In Ganga Bhawani v. Rayapati Venkat Reddy and Others, 2013(15) SCC 298, Court has held as under :-
"11. It is a settled legal proposition that the evidence of closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon.
(Vide: Bhagalool Lodh & Anr. v. State of UP, AIR 2011 SC 2292; and Dhari & Ors. v. State of U. P., AIR 2013 SC 308)."
32. It is settled that merely because witnesses are closed relatives of victim, their testimonies cannot be discarded. Relationship with one of the parties is not a factor that affects credibility of witness, more so, a relative would not conceal the actual culprit and make allegation against an innocent person. However, in such a case Court has to adopt a careful approach and analyse the evidence to find out that whether it is cogent and credible evidence.
33. So far as the next argument of learned Counsel for appellants regarding non-examination of Gayatri Devi is concerned, we of the view that this submission is thoroughly misconceived for the reasons that prosecution is not obliged to adduce witness mentioned in FIR or charge-sheet, in view of Section 134 of Indian Evidence Act,1872 (hereinafter referred to as 'Act,1872'),
34. Law is well-settled that as a general rule, Court can and may act on the testimony of a single witness provided he/she is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of Act, 1872, but if there are doubts about the testimony, Court will insist on corroboration. In fact, it is not the numbers, the quantity, but the quality that is material. Time-honoured principle is that evidence has to be weighed and not counted. Test is whether evidence has a ring of truth, cogent, credible and trustworthy or otherwise.
35. In Namdeo v. State of Maharashtra (2007) 14 SCC 150, Court re-iterated the view observing that it is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused inspite of testimony of several witnesses if it is not satisfied about the quality of evidence.
36. In Kunju @ Balachandran vs. State of Tamil Nadu, AIR 2008 SC 1381 a similar view has been taken placing reliance on earlier judgments including Jagdish Prasad vs. State of M.P., AIR 1994 SC 1251; and Vadivelu Thevar vs. State of Madras, AIR 1957 SC 614.
37. In Yakub Ismailbhai Patel Vs. State of Gunjrat reported in (2004) 12 SCC 229, Court held that :-
"The legal position in respect of the testimony of a solitay eyewitness is well settled in a catena of judgments inasmuch as this Court has always reminded that in order to pass conviction upon it, such a testimony must be of a nature which inspires the confidence of the Court. While looking into such evidence this Court has always advocated the Rule of Caution and such corroboration from other evidence and even in the absence of corroboration if testimony of such single eye-witness inspires confidence then conviction can be based solely upon it."
38. In State of Haryana v. Inder Singh and Ors. reported in (2002) 9 SCC 537, Court held that it is not the quantity but the quality of the witnesses which matters for determining the guilt or innocence of the accused. The testimony of a sole witness must be confidence-inspiring and beyond suspicion, thus, leaving no doubt in the mind of the Court.
39. So far as discrepancies, variation and contradiction in the prosecution case are concerned, we have analysed entire evidence in consonance with the submissions raised by learned counsel's and all the witnesses PWs 1, 2 and 3 supported the prosecution case as eye witnesses. All the three witnesses withstood lengthy cross-examination but nothing adverse material could be brought on record so as to disbelieve their statements. There is nothing in cross-examination which may render their statements doubtful. Naturally some minor contradictions and discrepancies have occurred in their examination-in-chief but they do not go to the root of case.
40. 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.
41. In Sachin Kumar Singhraha v. State of Madhya Pradesh in Criminal Appeal Nos. 473-474 of 2019 decided on 12.3.2019, 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.
42. We lest not 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 Criminal Appeal No. 56 of 2018, Smt. Shamim v. State of (NCT of Delhi), decided on 19.09.2018.
43. When such incident takes 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 is only noticed or remembered by people and that is stated in evidence. Court has to see whether in broad narration given by witnesses, if there is any material contradiction so as to render evidence so self contradictory as to make it untrustworthy is 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.
44. 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 the 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].
45. Learned Counsel for appellants advanced his arguments by submitting that medical evidence does not support the ocular version, therefore, accused-appellants are entitled to benefit of doubt and they are liable to be acquitted.
46. We have perused the medical evidence along-with the ocular version. PW.6 Dr. Nepal Singh deposed that on 15.04.2000, he was posted in District Hospital, Mathura and on duty on that day. At about 04:00 PM he conducted the autopsy over the dead body of Chandrapal Sharma and found following ante mortem injuries:
1. Lacerated wound 4 cm x 1 cm cartilage deep, front and upper part of left ear.
2. Lacerated wound 3 cm x 1 cm x bone deep on left side far head just lateral to left forehead just lateral to left eyebrow, surrounded by swelling 8 cm x 4 cm, bone underneath was fractured.
3. Incised wound 1 cm x 0.5 cm x muscle deep on left side forehead, just above left eyebrow.
4. Incised wound 3 cm x 1 cm x bone cavity deep on left side head 4 cm above behind left eyebrow. Underneath bone fractured.
5. Incised wound 3 cm x 0.5 cm x bone deep on left side head, 2 cm away behind from injury no. 4.
6. Lacerated wound 0.5 cm x 0.3cm x muscle deep on middle of left eyebrow.
7. Traumatic swelling 5 cm x 3 cm on right eye.
47. Doctor opined that death might have been occurred due to coma on account of ante mortem injuries and death was possible half day prior to post-mortem. He proved post-mortem as Ex.ka-5.
48. Pws 1, 2 and 3 categorically stated in his testimonial statement that accused-appellants assaulted victim with lathi and knife. As per Doctor report there were three injuries of sharp edged weapon and four injuries of blunt object which might be caused by danda. In this way medical evidence is compatible with the ocular version, therefore, we reject the submissions of learned Counsel for appellants.
49. In the entirety of the facts and circumstances and legal preposition discussed herein before, we are satisfied that prosecution has successfully proved its case beyond reasonable doubt against accused-appellants and Trial Court has rightly convicted him for having committed an offence under Section 302 read with 34 IPC. Both the appeals are devoid of merit and liable to be dismissed.
50. So far as sentence of accused-appellants 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 the individual cases.
51. 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 obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. 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].
52. Hence, applying the principles laid down in the aforesaid judgments and having regard to the totality of facts and circumstances of case, motive, nature of offence, weapon used in commission of murder and the manner in which it was executed or committed, we find that punishment imposed upon accused-appellants by Trial Court in impugned judgment and order is not excessive and it appears fit and proper and no ground appears to interfere in the matter on the point of punishment imposed upon him.
53. In view of above discussion, both the appeals lacks merit and is dismissed.
54. Lower Court record alongwith a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action and to apprise the accused-appellant through Jail Authority.
55. Before parting, we provide that Ms. Somya Chaturvedi, Advocate, who has appeared as Amicus Curiae for appellant in present Jail Appeal, shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer, posted in the office of Advocate General at Allahabad, without any delay and, in any case, within one month from the date of receipt of copy of this judgment.
Order Date :- 22.08.2019 I.A.Siddiqui