Allahabad High Court
Sheo Bahadur Singh & Others vs State Of U.P. on 24 August, 2018
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment Reserved on : 26.07.2018 Judgment Delivered on : 24.08.2018 Court No. - 47 Case :- CRIMINAL APPEAL No. - 4123 of 2008 Appellant :- Sheo Bahadur Singh & Others Respondent :- State Of U.P. Counsel for Appellant :- Pt. Sita Ram Vishwakarma,Sushil Kumar Dwivedi Counsel for Respondent :- Govt. Advocate Connected with Case :- CRIMINAL APPEAL No. - 3704 of 2008 Appellant :- Ram Das Singh Respondent :- State Of U.P. Counsel for Appellant :- Manish Tiwary,Ashwini Kumar Awasthi Counsel for Respondent :- Govt.Advocate and Case :- CRIMINAL APPEAL No. - 688 of 2010 Appellant :- Kulpat Singh Respondent :- State Of U.P. Counsel for Appellant :- Ajay Singh,Ramesh Prasad,Sushil Kumar Dwivedi Counsel for Respondent :- Govt. Advocate Hon'ble Ram Surat Ram (Maurya),J.
Hon'ble Umesh Chandra Tripathi,J.
[Delivered by Umesh Chandra Tripathi,J.] [1]. These three criminal appeals have arisen out of a common judgment and order dated 29.05.2008/31.05.2008 passed by Additional Sessions Judge/Fast Track Court-I, Banda in Sessions Trial No. 258 of 2003 (State v. Kulpat Singh and others), arising out of Case Crime No. 41 of 2003, under Sections 147, 148, 149, 307, 302, 323, 325, 504 and 506 of the Indian Penal Code (hereinafter referred to as 'IPC') and Sessions Trial No. 259 of 2003 (State v. Sheo Bahadur Singh and Another), arising out of Crime Nos. 42 of 2003 and 43 of 2003, under Sections 25 and 30 of the Arms Act, 1959 (hereinafter referred to as 'Act, 1959') Police Station - Tindwari, District - Banda whereby the appellants - Sheo Bahadur Singh, Swayamvar Singh, Vinesh Singh, Ram Das Singh and Kulpat Singh, all residents of Machahar Amlikaur, Police Station - Tindwari, District - Banda were convicted and sentenced, details whereof are given herein below :
(i) Appellants - Sheo Bahadur Singh, Swayambar Singh, Vinesh Singh, Ram Das Singh and Kulpat Singh were convicted and sentenced as follows :
i. Imprisonment for life and fine of Rs. 3,000/- each, under Section 302 read with Section 149 of IPC.
ii. Rigorous imprisonment for three years and fine of Rs. 1,000/- each, under Section 325 read with Section 149 of IPC.
(ii) Appellants - Swayambar Singh, Vinesh Singh, Ram Das Singh and Kulpat Singh were convicted under Section 147 of IPC and sentenced to imprisonment for one year each.
(iii) Appellant - Sheo Bahadur Singh was convicted under Section 148 of IPC and sentenced to rigorous imprisonment for two years.
(iv) Appellant - Sheo Bahadur Singh was convicted under Section 25 of Act, 1959 and sentenced to rigorous imprisonment for three years and fine of Rs. 2,000/- .
(v) Appellant - Swayambar Singh was convicted under Section 30 of Act, 1959 and sentenced to imprisonment for three months.
In case of default in payment of fine, all the appellants shall undergo additional imprisonment for six months each.
[2]. All the sentences were directed to run concurrently.
[3]. Stream of events culminating into lodging of the first information report, as discernible from the perusal of record, appears to be that on 18.03.2003, informant Raj Bahadur Singh's younger brother Ram Bahadur Singh and cousin Raj Kumar Singh s/o Ram Nahor Singh, residents of Amlikaur, Police Station - Tindwari, District - Banda were returning to their residence from the residence of Ram Asrey s/o Keshan Singh after having meals in his house on the occasion of festival of 'Holi'. While returning, they reached in front of house of Ram Das Singh s/o Ram Kishun Singh, where Kulpat Singh s/o Shripal Singh, Sheo Bahadur Singh and Swayambar Singh, sons of Sheo Vinod Singh and Vinesh Singh s/o Sheo Bhawan Singh were sitting. Kulpat Singh abused Ram Bahadur Singh, which was objected to by the latter. This lead to an altercation between them. Thereafter, Sheo Bahadur Singh, Swayambar Singh, Vinesh Singh and Ram Das Singh, all started abusing the Ram Bahadur Singh and Raj Kumar Singh. On hearing the verbal spat, informant Raj Bahadur Singh rushed to the spot along with this younger brother Shiv Bahadur @ Chota. At about 09.45 P.M., accused Sheo Bahadur Singh, with the intention to kill Ram Bahadur Singh, fired on him with the licensed gun of his brother Swayambar Singh. The fire hit Ram Bahadur Singh, due to which he fell on the ground. Thereafter Kulpat Singh, Swayambar Singh, Ram Das Singh and Vinesh Singh started doing 'marpeet' (assault) with the opposite party, due to which Shiv Bahadur @ Chota s/o Babbu Singh and Raj Kumar sustained injuries. On hue and cry being raised, several villagers reached on the spot, whereafter the accused fled away from the spot, threatening to kill them. Thereafter, with the help of the villagers, all the three injured were taken to Benda Ghat on bullock cart, from where they were send to police station on the tractor of Shyam Sundar Singh. On the way, informant's brother Ram Bahadur Singh succumbed to his injuries. It was requested that report be lodged and appropriate action be taken. The written report is on record and the same is marked as Ex.Ka.1.
[4]. Contents of written report were taken down by Constable Mahesh Kumar in the presence of informant Raj Bahadur Singh in chik first information report (F.I.R. No. 19 of 2003) at Case Crime No. 41 of 2003 under Sections 147, 148, 149, 307, 323, 504, 506 and 302 of IPC at Police Station - Tindwari, District - Banda on 19.03.2003 at 06.45 A.M. The FIR is on record and the same is marked as Ex.Ka.5.
[5]. Thereafter, the investigation of the case was commenced by S.O. Chandra Bhan Singh (Investigating Officer). He first of all noted copy of written report, G.D., statement of Constable Mahesh Kumar (scribe of F.I.R.) and informant Raj Bahadur Singh in the case diary. Thereafter, after selecting inquest witnesses, he held inquest of deceased Ram Bahadur Singh. The inquest report ('panchayatnama') was prepared by S.I. D.S.N. Mishra on the dictation of I.O. Chandra Bhan Singh, which is on record and the same is marked as Ex.Ka.2. The inquest proceedings commenced at 08.30 A.M. and concluded at 09.30 A.M., whereafter the dead body of the deceased was sealed and the same was send for post-mortem examination along with Constable Sarvesh Kumar and Home Guard Bharat Lal. In the process, relevant papers were prepared by S.I. D.S.N. Mishra in the presence of I.O. Chandra Bhan Singh viz. letter to R.I. (Ex.Ka.10), letter to C.M.O (Ex.Ka.11), challan nash (Ex.Ka.12), photo nash (Ex.Ka.13) and sample seal ('namoona mohar') (Ex.Ka.14). Thereafter, the Investigating Officer went to the place of occurrence with the informant and on the his pointing out, inspected the place of occurrence and prepared site plan of the place of occurrence. The site plan is on record and the same is marked as Ex.Ka.15. The Investigating Officer thereafter took samples of simple and blood-stained earth and one empty cartridge from the spot and prepared recovery memo of the same, which is on record and marked as Ex.Ka.16. He took statement of witnesses of recovery memo - Abhimanyu Singh and Anurag Singh. From the spot, the I.O. recovered pant, shirt, vest and underwear. He send all these articles and blood-stained and simple earth to Vidhi Vigyan Prayogshala, Agra (forensic science laboratory) for examination.
[6]. Injured Raj Kumar was brought to District Hospital, Banda on 19.03.2003 by Constable Babu Ram, where he was medically examined by Dr. G.K. Agarwal, Cardiologist, District Hospital, Banda at 12.20 P.M., wherein the following injuries were noted on his person :
1. Lacerated wound 2 cm. x .5 cm. x skin deep on the Rt. side of the head. Clotted blood present.
2. Contused swelling 3 cm. x 3 cm. on the lower end of the left hand. Adv. X-ray.
[7]. In the opinion of the doctor, injury no. 1 is simple in nature and injury no. 2 is kept under observation. X-ray was advised. Duration of injuries is one day and are caused by blunt object.
[8]. The injury report of injured Raj Kumar is on record and the same is marked as Ex.Ka.25.
[9]. Injured Shiv Bahadur @ Chota was also brought to District Hospital, Banda on the same day by Constable Babu Ram, where he was medically examined by Dr. G.K. Agarwal at 12.30 P.M., wherein the following injury was noted on his person :
1. Lacerated wound .5 cm. x .5 cm. x skin deep on the Rt. side of the at top of head. Clotted blood present.
[10]. In the opinion of the doctor, injury no. 1 is simple in nature. Duration of injury is one day and is caused by blunt object.
[11]. The injury report of injured Shiv Bahadur @ Chota is on record and the same is marked as Ex.Ka.24.
[12]. Mortal remains of deceased Ram Bahadur Singh was brought to T.B. Hospital, Banda on 19.03.2003 by Constable 136 Sarvesh Kumar Misra and Home Guard 1614 Bharat Lal. Post-mortem examination on the cadaver of the deceased was conducted by Dr. Ashok Gupta, Superintendent, District Hosptial, Karwi, Chitrakoot at 03.45 P.M. on the same day, wherein the following ante-mortem injuries were found on his person :
1. Gunshot wound of Entry : 1.5 cm. x 1.5 cm. x cavity deep on mid of Left buttock 4 cm. from mid line and 15 cm. from iliac crest. Margins inverted, Abraded collar present. U/L pelvic Bone Left side fractured. Direction Backward to forward, obliquely inward and upward.
2. Gunshot wound of exit : 3 cm. x 3 cm. x Abdominal cavity deep communicating with injury no. 1 on Rt. side Lower Abdomen 4 cm. below umbilicus, in 7 'O clock position, margins everted, lacerated, small intestines coming out of wound & perforated at places.
[13]. In the opinion of the doctor, cause of death of deceased Ram Bahadur Singh is shock and haemorrhage as a result of ante-mortem firearm injury.
[14]. The post-mortem report of deceased Ram Bahadur Singh is on record and the same is marked as Ex.Ka.3.
[15]. On 20.03.2003, the I.O. recorded the statement of injured Raj Kumar, Shiv Bahadur and inquest witnesses - Shyam Sundar Singh, Krishnapal Singh, Sharpadeen Rajjan Singh and informant Raj Bahadur Singh.
[16]. On 20.03.2003, Station Officer C.B. Singh and Sub-Inspector S.N. Mishra, Constable Shiv Narayan Patel, Constable Swamisharan, Constable Arun Kumar were returning to police station from Bendaghat after investigating in reference to the case. As soon as they reached Akash Hotel situated in Banda Road, Fatehpur they received tip of information from stool pigeon ('mukhbir') that two of the accused were sitting upon a well in the 'arhar' (split read gram) field of Gaya Prasad Dubey situated in the north of Bhujrakh Marg and one of the accused was in possession of a 12-bore gun. They reached in the said field and caught hold of the accused - Kulpat Singh and Sheo Bahadur Singh at 07.30 P.M. From the possession of accused Sheo Bahadur Singh, one SBBL factory-made gun numbered as 'C/7 3231' and four live cartridges were recovered. The recovery memo of gun and cartridges was prepared, which is on record and marked as Ex.Ka.17. When asked to show the license of the said gun, the accused could not do so. He confessed the fact that he had shot Ram Bahadur Singh (deceased) with this gun and that his brother Swayambar Singh is the license holder of this gun. Both the accused were arrested on the spot and taken to the police station. Consequently, a case was registered against accused Sheo Bahadur Singh on 20.03.2003 at 23.45 hours (11.45 P.M.) at Case Crime No. 42 of 2003 under Section 25 of Act, 1959 and against accused Swayambar Singh at Case Crime No. 43 of 2003 under Section 30 of Act, 1959. The F.I.R. of the aforesaid case is on record and the same is marked as Ex.Ka.8. The Investigating Officer inspected the spot and prepared site plan, which is on record and the same is marked as Ex.Ka.20. Thereafter, statement of witnesses was recorded. During investigation, the recovered gun and cartridges were send to Vidhi Vigyan Prayogshala for examination.
[17]. On 25.03.2003, injured Raj Kumar was brought to District Hospital, Banda by Constable Babu Ram for x-ray examination, which was conducted by Dr. R.P. Gupta, Radiologist, District Hospital, Banda wherein fracture was found on lower part of his ulna bone.
[18]. The x-ray report of injured Raj Kumar is on record and the same is marked as Ex.Ka.7.
[19]. It is pertinent to mention here that offence under Section 325 of IPC was added against the accused later on.
[20]. The reports of Vidhi Vigyan Prayogshala were received. They were kept on record and were marked as Ex.Ka. 26 and Ka.27.
[21]. After completion of investigation, the Investigating Officer submitted charge sheets against the accused under Sections 147, 148, 149, 307, 323, 325, 504, 506, 302 IPC (Case Crime No. 41 of 2003), under Section 25 of Act, 1959 (Case Crime No. 42 of 2003) and under Section 30 of Act, 1959 (Case Crime No. 43 of 2003). The charge sheets are on record and the same are marked as Ex.Ka.19, Ka.22 and Ka.23, respectively.
[22]. Pursuant thereto, the learned Magistrate took cognizance against the accused. After complying with the provisions contained in Section 207 of the Code of Criminal Procedure (in short 'Code'), he found case against the accused to be prima facie appropriate for committing it to the Sessions Court.
[23]. Consequent thereupon, committal proceedings took place and the case was committed to the Court of Sessions on 05.12.2003, where it was registered as Sessions Trial No. - 258 of 2003 and Session Trial No. - 259 of 2003 with S.T No. 258 of 2003 as leading case. From there, it was made over for trial and disposal to the court of Additional Sessions Judge/Fast Track Court-I, Banda. Accused were heard on point of charge and the trial court was prima facie satisfied with the case against them, therefore, it framed charges against the accused - Kulpat Singh, Swayambar Singh, Vinesh Singh and Ram Das Singh under Sections 147, 302 read with 149, 307 read with 149 of IPC, against accused - Sheo Bahadur Singh under Sections 148, 302 and 307 read with 149 of IPC and Section 25 of Act, 1959 and against accused - Swayambar Singh under Sections 30 of Act, 1959. In addition to it, charge against all the five accused under Section 325 read with 149 of IPC was also framed. Charges were read over and explained to the accused, who abjured the charges and opted for trial.
[24]. The prosecution, in order to prove the guilt of the accused and substantiate charge against them, examined as many as eleven prosecution witnesses, out of whom, injured Raj Kumar Singh (P.W.1), informant Raj Bahadur Singh (P.W.2) and Shiv Bahadur @ Chota (P.W.3) were examined as witnesses of fact, whereas Dr. Ashok Gupta (P.W.4), H.C.P. Sant Ram (P.W.5), Dr. R.P. Gupta (P.W.6), Head Moharir Chandrika Kanojiya (scribe) (P.W.7), S.I. Chandra Bhan Singh (Ist I.O.) (P.W.8), Constable Swami Sharan (P.W.9), S.I. Daya Shanker (IInd I.O.) (P.W.10) and Dr. G.K. Agarwal (P.W.11) were examined as formal witnesses.
[25]. Except as above, no other testimony was adduced, therefore, evidence for the prosecution was closed and the statements of the accused was recorded under Section 313 of the Cr.P.C., wherein they stated that neither they have killed the deceased nor caused injury to the injured. They claimed that they have been falsely implicated in the present case on account of enmity.
[26]. In turn, the defence did not lead any evidence, either oral or documentary.
[27]. The learned trial Judge after considering the case on its merit, passed the impugned judgment and order of conviction.
[28]. Feeling aggrieved by the order of learned trial Judge, the appellants have preferred the instant criminal appeals.
[29]. Heard Sri Sushil Kumar Dwivedi, Sri Ashwini Kumar Awasthi, Sri Ram Prasad, counsel for the appellants and Sri Nafis Ahmad, Additional Government Advocate for the State of Uttar Pradesh.
[30]. Learned counsel for the appellants contended that first information report has been lodged with an inordinate delay, for which no presumptive explanation has been put forth by the prosecution. The ocular testimonies are not supported by medical evidence. No independent witness has been examined. There are major contradictions in the statements of witnesses of fact. The learned trial court without considering all the facts and circumstances of the case and without appreciating the material brought on record, passed the impugned order of conviction, which is not sustainable and liable to set aside and as such, the appeals deserve to be allowed.
[31]. Per contra, learned A.G.A. contended that there is no illegality or perversity in the well-merited and well-reasoned order of conviction passed by the court below.
[32]. Injured eye-witness P.W.1 Raj Kumar Singh was returning along with his cousin Ram Bahadur Singh (deceased) to the residence from the residence of Ram Asrey. He has also sustained injuries in the same incidence and in the same sequence. Ulna bone of his left hand was found fractured. His presence on the spot at the time of the occurrence cannot be doubted. He stated before court that on the day of the occurrence, when he and Ram Bahadur Singh (deceased) reached in front of house of accused-appellant Ram Das Singh, accused-appellant Kulpat Singh abused Ram Bahadur Singh. On objection being made by Ram Bahadur Singh, an altercation took place between them. At that time, accused Sheo Bahadur Singh, Swayambar Singh, Sheo Bhawan Singh and Ram Das Singh were also sitting in front of house of accused-appellant Ram Das Singh. They also started hurling abuses. At around 09.45 P.M., accused-appellant Sheo Bahadur Singh fired on Ram Bahadur Singh with the licensed gun of his brother accused-appellant Swayambar Singh, whereafter Ram Bahadur Singh sustained grievous injuries and died later on.
On 19.03.2003, an empty cartridge 'Shaktimaan Express' was recovered by the police on the spot. Licensed gun of accused-appellant Swayambar Singh was recovered by the police on 20.03.2003 at about 07.30 P.M. from the possession of accused-appellant Sheo Bahadur Singh. The empty cartridge and licensed gun were sent to Vidhi Vigyan Prayogshala, Agra for chemical examination. As per report of ballistic expert dated 01.04.2003, the empty cartridge recovered from the spot on 19.03.2003 was fired from the licensed gun bearing Registration No. C/7 3231. The report of the forensic science laboratory corroborated the fact that from the licensed gun of accused-appellant Swayambar Singh, injury was caused to deceased Ram Bahadur Singh resulting into his death. Accordingly, version of P.W.1 injured Raj Kumar Singh is corroborated by the report of ballistic expert.
[33]. P.W.2 informant Raj Bahadur Singh and P.W.3 Shiv Bahadur @ Chota, who are the real brothers of deceased Ram Bahadur Singh are not the eye-witnesses of the incident (murder of Ram Bahadur Singh) as they reached on the spot after hearing alarm being raised by Raj Kumar Singh. Injured Raj Kumar Singh raised alarm after sustaining injuries, whereafter P.W.2 informant Raj Bahadur Singh and P.W.3 Shiv Bahadur @ Chota reached on the spot and saw Ram Bahadur Singh in injured position and accused-appellant Sheo Bahadur Singh armed with licensed gun of his brother accused-appellant Swayambar Singh. Shiv Bahadur @ Chota was also assaulted by the accused with blunt object 'lathi danda' due to which he sustained injury. As deceased Ram Bahadur Singh had sustained firearm injury and accused-appellant Sheo Bahadur Singh was present on the spot having licensed gun of his brother and other accused were armed with blunt object 'lathi danda' accordingly, from the statement of P.W.2 Raj Bahadur Singh and P.W.3 Shiv Bahadur @ Chota, only this inference can be drawn that accused-appellant Sheo Bahadur Singh has caused firearm injury to deceased Ram Bahadur Singh.
[34]. In the light of the aforesaid facts and circumstances of the case, we are of the considered view that on 18.03.2003 at about 09.45 P.M., when deceased Ram Bahadur Singh and his cousin Raj Kumar Singh reached in front of house of accused-appellant Ram Das Singh, the accused present there abused them and accused-appellant Sheo Bahadur Singh fired on Ram Bahadur Singh with the licensed gun of his brother Swayambar Singh, due to which he sustained fatal injuries, resulting into his death afterwards.
[35]. P.W.1 Raj Kumar Singh admitted in his cross-examination that deceased Ram Bahadur Singh has sustained firearm injury in his abdomen. As per post-mortem report, gunshot wound of entry in the body of the deceased is on the mid of his left buttock and wound of exit is on left side of his lower abdomen. This shows that fire hit on the left buttock of deceased Ram Bahadur Singh. Learned counsel for the appellants submitted that the ocular testimony of P.W.1 injured Raj Kumar Singh is not corroborated by medical evidence and accordingly, he is not a reliable witness. We do no agree with the submission made by learned counsel for the appellants. At the time of the occurrence, P.W.1 Raj Kumar Singh was at a distance of merely 2-3 steps from deceased Ram Bahadur Singh. At the time of firing, Raj Kumar Singh and deceased Ram Bahadur Singh might have attempted to save themselves from the fire. To save himself, deceased Ram Bahadur Singh might have turned back and bent towards the ground. As such, he might have sustained firearm injury on buttock as exit wound of injury on his abdomen. As exit wound was on abdomen, P.W.1 Raj Kumar Singh might have stated before the court that deceased Ram Bahadur Singh had sustained firearm injury on his abdomen. It is not possible for a person present on the spot, whose life is in danger and who is trying to save himself, to see as to on which part of the body a third person has received injury after being hit by the accused. Only after seeing the seat of injury, a person can infer as to where the injured had exactly sustained injury.
[36]. P.W.2 informant Raj Bahadur Singh stated in his cross-examination that pellets had passed across his younger brother Shiv Bahadur @ Chota, touching his head. He also stated that two shots were fired at the time of the occurrence. He stated this fact before the I.O. in his statement under Section 161 of the Code. However the I.O. stated that no such statement was made by informant Raj Bahadur under Section 161 of the Code. This is also not the prosecution version that two shots were fired at the time of the occurrence. Consistent version of first information report and statement of P.W.1 Raj Kumar Singh and P.W.3 Shiv Bahadur @ Chota are that single shot was fired by accused-appellant Sheo Bahadur Singh, due to which deceased Ram Bahadur Singh sustained fatal injury. Injured P.W.1 Raj Kumar Singh and P.W.3 Shiv Bahadur @ Chota have sustained two injuries and one injury, respectively. However, all the witnesses of fact - P.W.1 Raj Kumar Singh, P.W.2 Raj Bahadur Singh and P.W.3 Shiv Bahadur @ Chota have stated before court, aggravating the injury of injured Raj Kumar Singh and Shiv Bahadur @ Chota. On the basis of these contradictions, learned counsel for the appellants submitted that the witnesses of fact are not reliable.
[37]. All the witnesses of fact are villagers and laymen. P.W.3 Shiv Bahadur @ Chota has put his thumb impression on his statement before court, which shows that he was illiterate. It is not expected from any person to make such a live and vivid description of the incidence after lapse of time. On the basis of these minor contradictions, the whole prosecution version cannot be discarded.
[38]. In Gangadhar Behera and others v. State of Orissa reported in (2002) 8 SCC 381, Hon'ble Apex Court held that :
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 amounts 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 'a mandatory rule of evidence'. (See Nisar Alli v. The State of Uttar Pradesh (AIR 1957 SC 366). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. (See Gurucharan Singh and Anr. v. State of Punjab (AIR 1956 SC 460). 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 some aspect, it is 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, 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 Nayata and Anr. v. The State of Madhya Pradesh 1972 3 SCC 751) and Ugar Ahir and Ors. v. The State of Bihar (AIR 1965 SC 277). 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 Zwinglee Ariel v. State of Madhya Pradesh (AIR 1954 SC 15) and Balaka Singh and Ors. v. The State of Punjab. (AIR 1975 SC 1962). As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. (AIR 1981 SC 1390), 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.
[39]. Learned counsel for the appellants contended that no independent witness has supported the prosecution version. All the witnesses of fact are related to the deceased. Only on the basis of their statement, the accused-appellants cannot be convicted.
[40]. In Gangadhar Behera's case (supra), Hon'ble Apex Court held as follows :
.....Relationship is not a factor to affect credibility of a witness. 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 analyse evidence to find out whether it is cogent and credible.
In Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC 364) it has been laid down 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 relation 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 generalization. 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."
The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar v. State of Madras (AIR 1957 SC 614) was also relied upon.
We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case (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 witnesses. Speaking through Vivian Bose, J. it was observed:
"We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires 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. State of Rajasthan' (AIR 1952 SC 54 at p.59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel."
Again in Masalti and Ors. v. State of U.P. (AIR 1965 SC 202) this Court observed: (p, 209-210 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."
[41]. In Sardul Singh v. State of Haryana reported in (2002) 8 SCC 372, Hon'ble Apex Court held as under :
There cannot be a prosecution case with a cast-iron perfection in all respects and it is obligatory for the courts to analyse, sift and assess the evidence on record, with particular reference to its trustworthiness and truthfulness, by a process of dispassionate judicial scrutiny adopting an objective and reasonable appreciation of the same, without being obsessed by an air of total suspicion of the case of the prosecution. What is to be insisted upon is not implicit proof. It has often been said that evidence of interested witnesses should be scrutinized more carefully to find out whether it has a ring of truth and if found acceptable and seems to inspire confidence, too, in the mind of the court, the same cannot be discarded totally merely on account of certain variations or infirmities pointed or even additions and embellishments noticed, unless they are of such nature as to undermine the substratum of the evidence and found to be tainted to the core. Courts have a duty to undertake a complete and comprehensive appreciation of all vital features of the case and the entire evidence with reference to the broad and reasonable probabilities of the case also in their attempt to find out proof beyond reasonable doubt. This Court in Ugar Ahir v. State of Bihar [AIR 1965 SC 277 : (1965) 1 Cri LJ 256] has observed, as to what should be the approach of a court in such circumstances, as follows:
"6. The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinize the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest.
[42]. In this case, P.W.2 informant Raj Bahadur Singh and P.W.3 Shiv Bahadur @ Chota are real brothers and P.W.1 Raj Kumar Singh is the cousin of the deceased. Their statements are supported by medical evidence. There was no reason for them to make all these allegations and depose against accused-appellant Sheo Bahadur Singh, concealing the real culprit. Our social system is changing at a rapid pace. In the present social scenario, people refrain from going to police stations, courts, hospitals, etc. due to fear of insult, harassment and threat to life. For example, if a person meets with an accident and gets seriously injured, then no one will show courtesy and take him to hospital to save his life, just because of the fear of him being interrogated and examined as a witness. Similarly, if a person witnesses a murder, he will never go to police station and state that he has witnessed a murder, just for the simple reason that he fears that deposing against the murderer would endanger his life. It is human nature not to depose against a culprit to avoid enmity with him. In the present social perspective, it is least possible that a third person deposes against the culprit.
[43]. The occurrence had taken place on 18.03.2003 at about 09.45 P.M. and first information report has been lodged on 19.03.2003 at 06.45 A.M. The distance between police station and place of occurrence is about 15 kms., as per chik F.I.R. P.W.2 informant Raj Bahadur Singh has stated in his cross-examination that the police station is about 19 kms. from the place of occurrence. From his residence, injured Ram Bahadur Singh and Shiv Bahadur @ Chota were taken to Bendaghat by bullock cart. From Bendaghat they were going to Police Station - Tindwari on tractor. On the way, Ram Bahadur died. He further stated that there was no motorcycle in his hamlet. In the village, there are many sources of transport, but the village is at a good distance from the hamlet. In such circumstances, it was not possible for the informant and other persons to lodge first information report in the night. Accordingly we are of the view that no delay has been caused in lodging the F.I.R.
[44]. No motive has been assigned to accused-appellant Sheo Bahadur Singh to commit the offence, but all the witnesses of fact stated that Babbu Singh, father of deceased Ram Bahadur Singh, P.W.2 informant Raj Bahadur Singh and P.W.3 injured Shiv Bahadur @ Chota had deposed against accused Sheo Bahadur Singh and Vinesh Singh in a civil suit, four years before this incidence. As such, the relationship between family of the informant and that of accused-appellant Sheo Bahadur Singh was strained and not cordial. Although P.W.1 Raj Kumar Singh has not admitted this fact that he has narrated to the police in his statement under Section 161 of the Code that the occurrence had taken place due to altercation in drunken position, but P.W.8 S.I. Chandra Bhan Singh (I.O.) has admitted this fact that this statement has been made by P.W.1 Raj Kumar Singh in his statement under Section 161 of the Code. The relation between family of deceased and accused-appellant Sheo Bahadur Singh was strained. They might have taken alcoholic drinks on the occasion of festival of Holi, due to which altercation might have taken place between them. In the altercation, accused-appellant Sheo Bahadur Singh might have fired on the deceased Ram Bahadur Singh. Accordingly, there was imminent motive for accused Sheo Bahadur Singh to commit the offence.
[45]. Here it must also be noted that if offence is proved, the prosecution version cannot be doubted on the ground that it has failed to proved the motive of the accused to commit the offence. In Om Prakash @ Raja v. State of Uttaranchal reported in (2003) 1 SCC 648 Hon'ble Apex Court held as under :
11. As regards the motive for the crime, the High Court on an analysis of the evidence found that it could either be a frustrated attempt to commit robbery or it could be for taking revenge against the master and his family. It is in evidence of PW-1 that the decision to dispense with his services was conveyed to the accused on the previous day because the accused incurred the displeasure of the family on account of his misbehaviour viz., suspected theft and his killing or harming the pet birds. That apart, as stated by the accused in his statement under Section 313 Cr.P.C., he was asked to quit the job for having illicit intimacy with the sister of the co-accused and he was scolded on that account. The accused would have been aggrieved for one or all of these reasons. We are not concerned with the sufficiency or otherwise of the motive which would have prompted the appellant to commit the crime. The correctness of conviction cannot be tested on the touchstone of lack of sufficient motive, if the evidence establishes beyond reasonable doubt that the accused committed the crime. ......
[46]. Learned counsel for the appellants submitted that the place of occurrence i.e. residence of Ram Das Singh is far away from the residence of accused-appellant Sheo Bahadur Singh. The presence of the accused on the spot is highly doubtful. P.W.1 Raj Kumar Singh has stated in his cross-examination that accused Kulpat, Sheo Bahadur Singh and Swayambar Singh had also taken meals at the residence of Ram Asrey on the occasion of festival of Holi. Before him, several other persons - Chunakwa Maan, Chunna, Santosh and others had taken meals along with accused-appellants - Kulpat, Sheo Bahadur Singh and Swayambar Singh at the residence of Ram Asrey. On the occasion of festival of Holi, people meet traditionally in order to greet each other. Hence, on the occasion of festival of Holi, the presence of accused-appellants at the residence of Ram Das Singh cannot be doubted.
[47]. The I.O. had not taken into possession all the blood-stained clothes of witnesses of fact, which were stained in taking away the injured Ram Bahadur Singh from the spot to their residence, the clothes which Ram Bahadur Singh wore and the bed-sheet in which he was laid down while he was injured. All the clothes mentioned above are not very much material, even so the I.O. ought to have taken them into his possession. But even if it is presumed that the I.O. has not performed his duties efficiently, the whole prosecution version cannot be discarded, merely due to negligence of the I.O.
[48]. In State of U.P. v. Hari Mohan Singh and others reported in (2000) 8 SCC 598, Hon'ble Apex Court held as under:
.....However, the defective investigation cannot be made a basis for acquitting the accused if despite such defects and failures of the investigation, a case is made out against all the accused or anyone of them. .....
[49]. Role of causing injury by blunt object is assigned to accused-appellants Swayambar Singh, Vinesh Singh, Ram Das Singh and Kulpat Singh. P.W.1 Raj Kumar has stated that accused Swayambar Singh, Vinesh Singh, Ram Das Singh and Kulpat Singh had assaulted him and his younger brother Shiv Bahadur @ Chota. Accused-appellants Kulpat Singh and Swayambar Singh had made several attacks on him. He received two blows of 'lathi' by accused Kulpat Singh, two blows of 'lathi' by accused Swayambar Singh and 2-3 blows of 'lathi' by Vinesh Singh, due to which he sustained injuries.
[50]. P.W.3 Shiv Bahadur @ Chota has also admitted in his cross-examination that he has sustained 7-8 injuries on his back by blunt object. He also sustained injury on his hand and face. As per statement of P.W.1 Raj Kumar Singh and P.W.3 Sheo Bahadur @ Chota, they sustained several injuries. However, as per medical report, P.W.1 Raj Kumar has sustained only two injuries and P.W.3 Shiv Bahadur @ Chota has sustained only one injury. If the all four accused - Swayambar Singh, Vinesh Singh, Ram Das Singh and Kulpat Singh had assaulted P.W.1 Raj Kumar Singh and P.W.3 Shiv Bahadur @ Chota, then they might have sustained more than three injuries. From these facts, it is inferred that some of the accused - Swayambar Singh, Vinesh Singh, Ram Das Singh and Kulpat Singh might have been falsely and maliciously roped in the present case. Accused-appellants - Swayambar Singh and Sheo Bahadur Singh are real brothers. Accused-appellant Vinesh Singh also belongs to the same family. Accused-appellant Kulpat Singh firstly started abusing deceased Ram Bahadur Singh. The occurrence had taken place at the residence of accused-appellant Ram Das Singh, where all the accused were sitting. Accordingly, fact of falsely roping of any one of them cannot be ruled out.
[51]. Occurrence has taken place suddenly. There is no evidence on record to show pre-concert of the accused to commit the crime. Deceased Ram Bahadur Singh and injured Raj Kumar Singh reached in front of house of Ram Das Singh, where all the accused were sitting. Accused-appellant Kulpat Singh abused Ram Bahadur Singh, whereafter an altercation took place between the parties. Suddenly, accused Sheo Bahadur Singh fired on Ram Bahadur Singh, due to which the latter sustained injuries and died later on. Therefore, it cannot be said that all the other accused - Sheo Bahadur Singh, Vinesh Singh, Ram Das Singh and Kulpat Singh were intended to kill Ram Bahadur Singh or there was any unlawful assembly of the accused to commit an offence.
[52]. In Mariadasan and others v. State of Tamil Nadu and Varuvel and others v. State of Tamil Nadu reported in (1980) 3 SCC 68, Hon'ble Apex Court held that :
....The whole fight started suddenly on the spur of the moment in a heat of passion and, therefore, the accused could only be liable for the individual acts committed by them. ....
[53]. In Vijay Pandurang Thakre and others v. State of Maharashtra reported in (2017) 4 SCC 377, Hon'ble Apex Court held as under :
16. As is clear from the plain language, in order to attract the provision of Section 149, following ingredients are to be essentially established:
(i) There must be an unlawful assembly.
(ii) Commission of an offence by any member of an unlawful assembly. (iii) Such offence must have been committed in prosecution of the common object of the assembly; or must be such as the members of the assembly knew to be likely to be committed.
If these three elements are satisfied, then only a conviction under Section 149 IPC, may be substantiated, and not otherwise. None of the Sections 147, 148 and 149 applies to a person who is merely present in any unlawful assembly, unless he actively participates in the rioting or does some overt act with the necessary criminal intention or shares the common object of the unlawful assembly.
[54]. In the present case, assembly of the accused was not unlawful before accused-appellant Kulpat Singh started abusing deceased Ram Bahadur Singh. Participation of all the other accused in the commission of the offence is doubtful. There is no evidence on record to show that except accused-appellant Sheo Bahadur Singh, any other accused was either intended to kill Ram Bahadur Singh or had any knowledge about the intention of Sheo Bahadur Singh to kill Ram Bahadur Singh.
[55]. For the reasons aforesaid, conviction and sentence of accused-appellants - Swayambar Singh, Vinesh Singh, Ram Das Singh and Kulpat Singh under Sections 147, 325 read with 149 of IPC and 302 read with 149 of IPC and conviction and sentence of accused-appellant - Sheo Bahadur Singh under Sections 148 and 325 read with 149 of IPC are not sustainable and liable to be set aside.
[56]. Although charge against accused-appellant Sheo Bahadur Singh has been framed under Section 302 of IPC, but due to clerical/typographical mistake, learned trial court has convicted him under Section 302 read with 149 of IPC. In view of above, conviction and sentence of accused Sheo Bahadur Singh under Section 302 read with 149 IPC is liable to be modified to Section 302 of IPC. Accordingly, conviction and sentence of accused-appellant - Sheo Bahadur Singh under Section 302 of IPC are liable to be upheld.
[57]. As per prosecution version, on 20.03.2003 at about 07.30 P.M., licensed gun belonging to accused-appellant Swayambar Singh was recovered by the police from the possession of accused-appellant Sheo Bahadur Singh in the 'arhar' field of Gaya Prasad Dubey. There was no public witness of the alleged recovery. It was also not natural that after two days of the occurrence, accused-appellant Sheo Bahadur Singh sat in the 'arhar' field, having licensed gun which was alleged to have been used in the commission of the crime. Accordingly, recovery of gun from the possession of accused-appellant Sheo Bahadur Singh appears to be doubtful.
[58]. Statement of accused-appellant Swayambar Singh under Section 313 of the Code was recorded on 14.08.2007, wherein he stated his age to be about 80 years. Accordingly, at the time of the incidence, he was about 76 years old.
[59]. Section 3 of the Act, 1959 reads as follows :
3. Licence for acquisition and possession of firearms and ammunition.-- 1[(1)] No person shall acquire, have in his possession, or carry any fire-arm or ammunition unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder:
Provided that a person may, without himself holding a licence, carry any firearms or ammunition in the presence, or under the written authority, of the holder of the licence for repair or for renewal of the licence or for use by such holder.
¹[(2) Notwithstanding anything contained in sub-section (1), no person, other than a person referred to in sub-section (3), shall acquire, have in his possession or carry, at any time, more than three firearms:
Provided that a person who has in his possession more firearms than three at the commencement of the Arms (Amendment) Act, 1983, may retain with him any three of such firearms and shall deposit, within ninety days from such commencement, the remaining firearms with the officer in charge of the nearest police station or, subject to the conditions prescribed for the purposes of sub-section (1) of section 21, with a licensed dealer or, where such person is a member of the armed forces of the Union, in a unit armoury referred to in that sub-section.
(3) Nothing contained in sub-section (2) shall apply to any dealer in firearms or to any member of a rifle club or rifle association licensed or recognised by the Central Government using a point 22 bore rifle or an air rifle for target practice.
(4) The provisions of sub-sections (2) to (6) (both inclusive) of section 21 shall apply in relation to any deposit of fire-arms under the proviso to sub-section (2) as they apply in relation to the deposit of any arm or ammunition under sub-section (1) of that section.] [60]. Accordingly, as per proviso of Section 3 (i) of Act, 1959 a person may carry a firearm in the presence of licensed holder of the firearm for the use of the licensed holder. Accused-appellant Swayambar Singh is the real brother of accused-appellant Sheo Bahadur Singh. Therefore, Sheo Bahadur Singh was entitled to carry the licensed gun of his brother Swayambar Singh (licensed holder) in his presence for use of Swayambar Singh. There is also no evidence to show that Swayambar Singh had authorized Sheo Bahadur Singh to use his licensed gun. Therefore, it is obvious accused Swayambar Singh has not contravened any condition and is not liable to be punished under Section 30 of Act, 1959. Accordingly, conviction and sentence of accused-appellant - Swayambar Singh under Section 30 of Act, 1959 are liable to be set aside.
[61]. Although accused-appellant Sheo Bahadur Singh may carry the licensed gun of his brother Swayambar Singh in his presence for use of Swayambar Singh, but he has contravened the conditions and used the licensed gun belonging to his brother to commit the crime. Accordingly, conviction of accused-appellant - Sheo Bahadur Singh under Section 25 of Act, 1959 are liable to be upheld.
[62]. In the result, Criminal Appeal No. 4123 of 2008 (Sheo Bahadur Singh and others v. State of U.P.) is allowed in part. Criminal Appeal Nos. 3704 of 2008 (Ram Das Singh v. State of U.P.) and 688 of 2010 (Kulpat Singh v. State of U.P.) are allowed. Conviction and sentence of accused-appellants - Swayambar Singh, Vinesh Singh, Ram Das Singh and Kulpat Singh under Sections 147, 325 read with 149 of IPC and 302 read with 149 of IPC, conviction and sentence of accused-appellant - Sheo Bahadur Singh under Sections 148 and 325 read with 149 of IPC and conviction and sentence of accused-appellant - Swayambar Singh under Section 30 of Act, 1959 are hereby set aside and they are acquitted. However, conviction and sentence of accused-appellant - Sheo Bahadur Singh under Sections 302 of IPC and 25 of Act, 1959 are hereby upheld and he is sentenced as follows :
(i) Imprisonment for life and fine of Rs. 3,000/- under Section 302 of IPC.
(ii) Rigorous imprisonment for three years and fine of Rs. 2,000/- under Section 25 of Act, 1959.
In case of default in payment of fine, the appellant shall undergo additional imprisonment for six months.
[63]. Appellants - Swayambar Singh, Vinesh Singh, Kulpat Singh and Ram Das Singh are on bail. They need not surrender. Their bail bonds stand cancelled.
[64]. Appellant - Sheo Bahadur Singh is in jail. He shall remain in custody to serve out the remaining part of the sentence awarded to him.
[65]. Let a copy of this order be certified to the court below for the purposes of intimation and necessary compliance. Let the lower court's record be remitted back to the court concerned.
Order Date :- 24.8.2018 I. Batabyal [U.C. Tripathi,J.] [R.S.R. (Maurya),J.] ********************